— !. I9 Waugh v. Riley 522 XV 111 TABLE OF CASES. Weaver v. Jones Weed v. Beebe Welch v. Bunce West v. Penny Wheeler v. The State Wheeler v. United States Whipp v. The State White v. Wager Whitmarsh v. Hall Wilhelm v. Hardman Williams v. Hays PAGE PAGE 3IO Williams v. Wentworth n 467 340 Willwerth v. Leonard 504 313 Wilson v. McMillan 277 ». 389 Wilson v. Wilson 227 509 Wolf v. Bauereis n ISO 434 Woolfolk v. Woolfolk n 224 n. 207 Wunderle v. Wunderle 524 132 35o Yeates v. Reed n 482 353 Young v. Stevens 443 473 CASES ON DOMESTIC RELATIONS THE LAW OF PERSONS. CASES ON DOMESTIC RELATIONS THE LAW OF PERSONS. PART I. MARRIAGE. CHAPTER I. CONTRACT TO MARRY. Proof of Contract. PERKINS v. HERSEY. i R. I. 493.— 1851. Assumpsit for breach of promise of marriage. Plea, non assump- sit. There was no express promise of marriage proved. Evidence was given that the defendant had been much in the society of the plain- tiff, visiting her frequently, walking with her alone, and taking her to ride; that, during the sickness of the plaintiff, the defendant had shown a deep interest in her, and had brought her sister, who resided at a distance, to take care of her; that he had stayed at her father's house at one time for several days, and had continued his attentions to her for nearly two years. The plaintiff then gave birth to a child, alleged to be the child of the defendant, and the defendant discon- tinued the intimacy. Greene, Chief Justice, charged the jury. The plaintiff sets forth in her declaration, mutual promises of marriage made by the plaintiff on one hand, and the defendant on the other, and broken by the de- fendant, and asks damages for the breach of promise. The plaintiff must first prove the contract on which the action is founded, that is, [Domestic Relations — 1.] 2 CONTRACT TO MARRY. a promise of marriage made by the defendant and accepted by the plaintiff. A contract may be proved either by witnesses who heard it made, or by facts and circumstances from which it may be inferred. It is evident that a contract like the present can generally be proved only in the latter mode. It is made in mutual confidence, in pri- vate, in the absence of witnesses. There are some differences in opinion in the courts in regard to the kind of facts which are admis- sible to prove this promise; but there is no doubt that it may be in- ferred from circumstances. What then are the circumstances ? The ordinary politeness and civility, which a gentleman extends to a lady, are not to be considered as furnishing any proof of such a promise. The safest rule we can lay down is this. If you find that the attentions which the defendant paid the plaintiff, and the inter- course between them, were such as are usual with persons engaged to be married; and such as are unusual with persons between whom there exists no such relation, they are competent for you to consider as evidence which may or may not, as you may determine, suffice to prove a promise of marriage. It is not necessary for you to consider that there was an express promise made and accepted in terms, but if his conduct was such as to induce her to believe that he intended to marry her, and she acted upon that belief, the defendant permit- ting her to go on trusting that he would carry the intention into effect, that will raise a promise upon which she may recover. But this must be shown by facts and circumstances, and you cannot consider the understanding of the friends of the parties as to the relation between them. If you think there was a promise, you will next have to consider the damages for the breach of it. The prom- ise is as binding as any other; but the damage by breach of it is from its nature not susceptible of pecuniary measurement. If a man promises to pay a sum of money and fails, the damages are the sum promised with interest thereon from the date of the breach of contract. But the damages here do not rest on anything of a pecu- niary nature. The amount, therefore, lies very much in your dis- cretion. You will consider the injury done to the plaintiff's feelings — her prospects, her reputation, and her social position, and will give her just such damages as a girl like her, treated as she has been, ought to receive. You will consider what would have been her standing had the defendant married her, and what is her situa- tion now that he refuses. The fact that the plaintiff was seduced you will not consider in this connection. We have a statute which affords the plaintiff a remedy for the injury thus done to her, in a more appropriate form. Verdict for the plaintiff for $3,000. PROOF OF CONTRACT. 3 Church, C. ]., in HOMAN v. EARLE. 53 N. Y. 267, 273.-1873. I agree with the learned counsel for the defendant that to con- stitute a promise of marriage substantial proof should be required of the fact. In the case of Honeyman v. Campbell, 5 Wils. & Shaw, 144; 2 Dow. & Clark, 282, cited and very much relied upon by the defendant's counsel, the lord chancellor has, I think, correctly stated the law upon the subject. The propositions of the opinion are: 1. That the contract may be proved by direct or by circum- stantial evidence. 2. That there must be a serious promise, in- tended as such by the person making it, and accepted by the person to whom it is made. 3. That mere courtship or even an intention to marry is not sufficient to constitute a contract of marriage. These propositions are entirely sound and do not conflict with the law of the court in this case. The opinion does not attempt to define what circumstances will be deemed sufficient nor from what acts or language a serious promise maybe inferred. True, it holds, and I think correctly, that neither courtship nor a mere intention is alone sufficient, but the chancellor says: " But courtship is a most material fact in the case when you are examining whether from the conduct of the parties it appears that a promise had actually passed between them." So, while it is plain that an intention to make a contract is not a contract, yet if such intention is so expressed as that both parties understand it to be a promise, and it is accepted as such, it is as binding as if made in any other form. Parties may select their own language, and if from that and their conduct a legitimate inference may be drawn of their intention and under- standing, such intention must be carried out. The expressions in some of the cases, that a contract may be inferred from devoted attention and apparently exclusive attachment, have not been gen- erally adopted by the courts. 15 Mass. 1, note. ULLMAN v. MEYER. 10 Fed. Rep. 241. (Circuit Court, S. D., N. Y.) — 1882. Motion for a new trial. Wallace, D. J. I am constrained to hold that the defendant was erroneously precluded from the benefit of his defence under the statute of frauds on the trial of the action, and that the construction 4 CONTRACT TO MARRY. of the statute, which, upon a hasty reading seemed correct, cannot be maintained. The case turns upon the construction of the statute of frauds, the phraseology of which differs from that of the statute of Charles II. It is stated in Parsons on Contracts, vol. 3, p. 3, that although provisions substantially similar have been made by the statutes of this country, in no one state is the English statute ex- actly copied. It was alleged in the present case, and the evidence tended to show, that by the terms of the agreement of marriage between the parties, the marriage was not to take place until sometime after the expiration of one year. It was held that, by force of the exception in the third section of our statute, promises to marry were not required to be in writing under any circumstances, the view being taken that it was the intention of the statute to withdraw agreements to marry altogether from its operation. As an original proposition it might be debated whether the statute of frauds was ever intended to apply to agreements to marry. They are agreements of a private and confidential nature, which, in coun- tries where the common law prevails, are usually proved by circum- stantial evidence, and at the time the English statute was passed were not actionable at law, but were the subjects of proceedings in the ecclesiastical courts to compel performance of them. Neverthe- less, at an early day after such actions became cognizable in courts of law the defence of the statute of frauds was interposed, under that clause of the statute which denies a right of action upon any agreement made upon consideration of marriage unless the agree- ment is in writing; and though it was held that such clause only related to agreements for marriage settlements, there seems to have been no doubt in the minds of the judges that promises to marry were within the general purview of the statute. In our own coun- try, in Derby v. Phelps, 2 N. H. 515, the question was directly decided, and it was held that although the defence could not be main- tained under the marriage clause of the statute, it was tenable under the clause requiring all agreements not to be performed within a year to be in writing. To the same effect are Nichols v. Weaver, 7 Kan. 373, and Lawrence v. Cooke, 56 Me. 193. The question has never been presented in our own state, and the ruling upon the trial was made under the impression that the excep- tion in the third clause of our statute was meaningless, unless in- tended to relate to all the clauses. It was entirely unnecessary if limited to the particular clause in which it is placed, because by the settled construction of the statute the clause did not apply to the excepted class of promises. 1 Ld. Raym. 387; 1 Strange, 34. When ILLEGAL CONSIDERATION. 5 English statutes, such as the statute of frauds, have been adopted into our own legislation, the known and settled construction of these statutes has been considered as silently incorporated into the acts. Pennock v. Dialogue, 2 Pet. 1. A more careful examination has, however, satisfied me that the only purpose of inserting the exception was by way of explanation, and to remove any doubt as to the meaning of the clause by incor- porating into it expressly what would otherwise have been left to implication. This conclusion is more reasonable than the supposi- tion that so important an innovation upon the statute of frauds would have been engrafted so ambiguously. If it has been intended to exclude promises of marriage altogether from the operation of the statute, it could have been plainly evinced by inserting the exception where it would naturally apply to all the classes of contracts required to be in writing; as it is, it more obviously refers to the marriage clause, and the class of promises covered by that clause. It has no necessary relation to the other classes of promises. While the let- ters of the parties show a marriage engagement, the terms of the engagement and the time of the marriage are not indicated suffi- ciently to take the case out of the statute. The evidence offered to show that the promise of the defendant was not, by its terms, to be performed within a year, was sufficient to present a question of fact for the jury. As this question was withdrawn from their consideration, there must be a new trial. 1 Illegal Consideration. BURKE v. SHAVER. 92 Va. 345.— 1895. Error to Circuit Court, Rockingham County. Action by Alice E. Shaver against Robert M. Burke. There was a judgment for plaintiff, and defendant brings error. Reversed. Cardwell, J. This is a writ of error to a judgment of the Cir- cuit Court of Rockingham county. The action is for a breach of promise of marriage brought by the defendant in error against the plaintiff in error, — the declaration alleging, in aggravation of dam- ages, the seduction of defendant in error, birth of child, etc., — and at the trial the jury awarded damages in the sum of $1,000. 1 Contra, Brick v. Gannar, 36 Hun, 52. 6 CONTRACT TO MARRY. The first assignment of error is to the refusal of the trial court to give the following instructions, asked for by the defendant (plaintiff in error) : Instruction i. " The jury are instructed that if the plain, tiff yielded to the request of the defendant to have sexual intercourse with her upon the promise of the defendant, if the plaintiff got into trouble, he would marry her, such contract did not constitute a legal contract of marriage." Instruction 2. "The jury are instructed that, upon an agreement between a single man and a single woman to have illicit intercourse, and that, if pregnancy of the female shall follow, the man agrees to marry the woman, such agreement is against morality, and does not create a legal contract of marriage." The first question to be determined is whether these instructions correctly propound the law applicable to the case. A contract for marriage is the mutual agreement of a man and a woman to marry each other, or become husband and wife, in the future, and must satisfy the legal requirements as to parties, consideration, etc., as other contracts must. Wharton, in his work on the Law of Contracts (volume 1, sec. 373), states the law thus: " An agreement is void when the consideration is future illicit cohabitation, no matter what other considerations may unite, or how skillfully the illegal object mio-ht be clothed. * * * A promise of marriage on consideration of sexual intercourse also is void." Chancellor Kent, in his Com- mentaries (volume 2, 13th ed., p. 467), in discussing what constitutes a valuable consideration of a contract, says: 'The consider- ation must not only be valuable, but it must be a lawful considera- tion, and not repugnant to law, or sound policy, or good morals. l Ex turpi contractu, actio nan oritur; ' and no person, even so far back as the feudal ages, was permitted by law to stipulate for in- iquity. The reports in every period of English jurisprudence and our American reports equally abound with cases of contracts held illegal on account of the illegality of the consideration, and they contain certain striking illustrations of the general rule that con- tracts are illegal when founded on a consideration contra bonos n/i>;rs, or against principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law. If the contract grows immediately out of, or is connected with an illegal or immoral act, a court of justice will not enforce it." In the case of Saxon v. Wood (Ind. App.), 30 N. E. 797, where the complaint alleged " that defendant, who was a suitor of plaintiff, an unmarried woman, solicited her to have sexual intercourse with him, and on her refusal, agreed that if she would yield to his wishes, and thereby became pregnant, he would at once marry her; that in consideration of such agreement, to which she consented, plaintiff yielded to de- ILLEGAL CONSIDERATION. 7 fendant's solicitations, and did have sexual intercourse with the defendant, from which pregnancy resulted, and from which a child was born to plaintiff, and the defendant, on her request to fulfil his agreement, refused to marry her," — it was held that the action would not lie, the contract being based on an immoral considera- tion. Judge Black, in delivering the opinion of the appellate court of Indiana, in that case, cites with approval what has above been quoted from Kent's Commentaries, and a number of other authori- ties on the same line. In the case of Hanks v. Nagle (decided by the Supreme Court of California), 54 Cal. 51, which was an action for a breach of promise of marriage similar in many respects to the case at bar, the plaintiff testified, in effect, that the defendant promised to marry her if she surrendered her person to him, and that she thereupon con- sented. The court held that promise was void on account of the immorality of the consideration, the court saying, in its opinion, that " upon well-settled principles the plaintiff should not have recovered on a contract of this character, as, being a contract for illicit cohabitation, it is tainted with immorality." Citing Story on Cont. sec. 458, and Steinfelt v. Levy, 16 Abb. N. S. 26. In the lat- ter case, which was decided by the Supreme Court of New York, Chief Justice Neilson, in discussing the nature of the contract sued on, says: "It is hardly necessary to say that a contract thus grossly immoral would not support the action." " The learned pre- siding judge [of the court below] seems to have had in view the rule that where a contract is founded on two considerations, one of which is merely void, but not vicious, and the other good, the contract is binding to the extent of the good consideration. He ruled that if, in fact, mutual concurrent provisions to marry were a part of the consideration, the plaintiff could recover. It does not seem to have occurred to him that such a rule would tend to legalize contracts for prostitution, or that the principle in view is never applied to a con- tract tainted with immorality. Courts of justice will not aid the illicit or corrupt arrangement, or sift one part of it to save the other part." The learned counsel for defendant in error cites this case as authority for his contention that instructions 1 and 2 were not appli- cable to the case at bar, because there was a promise of marriage, inde- pendent of the promise made in consideration of sexual intercourse; but the case of Stein/tit v. Levy sustains the doctrine laid down in Hanks v. Nagle, and the other authorities above cited. Moreover, we shall see, later on, that the evidence does not show a promise in the case at bar, by the plaintiff in error, to marry the defendant in 8 CONTRACT TO MARRY. error, independent of the promise to marry her if she would have sexual intercourse with him, and became pregnant. The cases of Kurtz v. Frank, 76 Ind. 594, and Clark v. Pendleton, 20 Conn. 405, are also cited by counsel for defendant in error, but they do not apply to the case at bar. In the first of these cases the man prom- ised to marry the woman in September or October, if they could agree and get along and be true to each other, and that if she be- came pregnant from their intercourse he would marry her i'mmedi- ately. She became pregnant in July, but he then refused to marry her. The court held, upon the particular facts in that case, that the illicit intercourse did not so enter into the consideration as to ren- der the agreement void ; that an action for the breach accrued at once. The real point decided was that the plaintiff could maintain her action upon the defendant's refusal to marry her after pregnancy, without waiting until the time fixed upon for the marriage by the original agreement. We think that instructions Nos. 1 and 2 cor- rectly propounded the law. It only remains to be determined whether the instructions are relevant to the testimony in the case. Instructions founded on evi- dence in the case, and consistent with the law, are proper, and should be given; but otherwise, where they have no basis in the evidence. Moons A dm' 'r v. Railroad Co., 78 Va. 745; Priest v. W hi taker, Id. 151; Bireh v. Linton, Id. 584; Rosenbaums v. JVeeden, 18 Grat. 785. The testimony of the plaintiff (defendant in error) is as follows: On examination in chief she says that these improper relations (illicit intercourse) commenced in July, 1890; that they occurred afterwards, and continued up to the last of March, 1892. " He said that he was going to marry me if I would consent. He often made that statement. Q. Were you engaged to him at the time of the first act of improper intercourse, in July, 1890 ? A. I asked him if he would be true to his promise, and he said that he would; that he was going to marry me anyway. Q. Did he say anything about marrying you the last time your relations with him were improper, in March, 1892 ? A. He said that he would be true to his promise." On cross-examination she says that nothing was ever said about the time, — " only he said, if I got into trouble, he would marry me. Q. You mean in a family way ? A. Yes, sir. Q. And you were satisfied with this arrangement ? A. Yes, sir. Q. When did he tell you this ? A. He told me in the first beginning, in July, 1890. He promised me this the first time, and he promised me afterwards." Then in answer to the question propounded by the court, " You say the first time Burke had intercourse with you he promised to marry you ? " she answers, " Yes, sir." And then, on ILLEGAL CONSIDERATION. 9 re-examination, she stated, "that when the first act of intercourse took place Burke said he was going to marry her; that she asked him when he was going to marry her, and he said ' when she got in trouble.' He said he was going to marry me anyway." This is substantially all the testimony as to the promise of marriage, or the seduction, and it will be noted that the plaintiff said nothing as to any promise (or engagement) of marriage prior to the first act of illicit intercourse, in July, 1890. On the contrary she says, in answer to the cross question, " Was anything said about getting married between June, 1889 (the first time she met him), and July, 1890 ? " " He expressed his affections that way. We were not particularly engaged." It appears, therefore, that the question was directly raised by the evidence, whether or not this alleged promise of marriage was made in consideration of sexual inter- course, or upon condition that she became pregnant, which ques- tion was to be determined by the jury, and the defendant had a right to have the jury instructed as to the law that was to guide them in determining that question; and as instructions Nos. 1 and 2 correctly propounded the law, they should have been given to the jury. The refusal to give these instructions was error. The defendant also asked the court to instruct the jury as follows: Instruction No. 3. " The jury are instructed that if they believe from the evidence that no day was fixed for the marriage, the plain- tiff must prove that she offered to fix the time and place of marriage, and that, in default of such offer to fix the time and place of the marriage, there is no breach of the contract, and the plaintiff cannot recover." In the abstract this instruction embodies the law, but we do not think, upon the testimony in this case that it applies. Where one repudiates his promise and declares that he will not be bound by it, the party not in default need not wait for the time of performance to arrive, and, where the engagement is general, need not request the fulfillment of the promise, but may sue at once. 2 Am. & Eng. Enc. of Law, 524, and cases cited. The evidence here is that the defendant denied in toto the alleged promise of marriage be- fore this action was brought. The instruction was, therefore, prop- erly refused. Judgment in this case must be set aside and annulled, and the case remanded to the Circuit Court of Rockingham county for a new trial, to be had in accordance with this opinion. IO CONTRACT TO MARRY. KELLEY v. RILEY. 106 Mass. 339. — 187 1. Contract for breach of promise of marriage. The declaration did not allege special damage. At the trial in the Superior Court, before Judge Brigham, C. J., evidence was introduced tending to show that the defendant was a married man at the time of the promise. The defendant requested the judge to rule that, if the defendant was married at the time of the promise, the action could not be maintained; but he declined so to rule, and ruled that the action could be maintained, although the defendant was married at the time of the promise, if the plaintiff was ignorant thereof. The plaintiff offered evidence tending to show that, induced by the defendant's promise of marriage, she submitted to sexual inter- course with him, and that he got her with child, of which she had been delivered and which was now living. The defendant objected to the admission of this evidence; but the judge admitted it, as affecting the measure of damages. In submitting the case to the jury, the judge instructed them as follows: " Promises of marriage, not often being made in the presence of witnesses or in writing, have usually, in cases of this nature, been proved by circumstantial evidence. As the promise of the plaintiff is the consideration of the promise of the defendant, both must be proved in order to support the action ; and each promise may be established by the same species of proof; and the conduct and deportment, as well as the language of the parties, towards each other, may furnish satisfactory evidence of the fact that a mutual promise of marriage has been made between them, that is, a promise of marriage by one and a corresponding promise of marriage by the other. " In determining what sum of money would reasonably indemnify and compensate the plaintiff for a breach of the defendant's contract" with her, the jury may consider, in addition to her expenditure in preparing, 'the disappointment of her reasonable expectations, and inquire what she has lost by her disappointment, and for that pur- pose consider among other things what would be the money value or worldly advantage (separate from considerations of sentiment and affections) of a marriage which would give her a permanent home, and the advantage of such a domestic establishment as would be suitable to her as the wife of a person of the defendant's estate and ILLEGAL CONSIDERATION'. II station in life. The jury ought also to consider whether her affec- tions were in fact implicated, and whether she had become attached to the defendant, and if such was the fact, the wound and injury to her affections would be an additional element in the computation of her damage; and also to consider whatever mortification, pain or distress of mind she suffered, resulting from the discovery of the defendant's inability to marry, by reason of his living wife, or his refusal to marry her within a reasonable time after the contract was made between them, if he was not disabled from doing so by reason of a living wife. And if, while the parties were mutually promised in marriage, and intending and expecting marriage in a short time, the defendant solicited, in consideration of such intention and expec- tation, and the plaintiff permitted, in consideration of such expecta- tion and intention, sexual intercourse with her, whereby she became pregnant with a child, which was born alive, and is now living, these facts may be considered by the jury in computing damages, so far as they tend to aggravate and increase the disappointment, mortifica- tion, pain or distress of mind, which she has suffered by reason of the defendant's breach of contract." A verdict for the plaintiff was returned September 23, 1870, and the defendant alleged exceptions; on September 27 the plaintiff moved for judgment; on October 1 the judge extended the time for filing the exceptions till October 3, on which day they were filed, and on the same day, a few hours afterwards, the defendant died. The plaintiff then asked for judgment on her motion, and contended that the defendant's exceptions ought not to be allowed, but on October 14 the attorney who appeared for the defendant at the trial presented the exceptions for allowance, and on October 17 the judge allowed them. The defendant died intestate, and no steps to- wards taking out administration on his estate were had before the filing [the allowance ?] of the exceptions. To the refusal of the judge to grant her motion, and to his allowance of the defendant's exceptions, the plaintiff alleged exceptions. Colt, J. Both parties present exceptions. The defendant died after his exceptions, taken during the trial of the case to the jury, were filed in the court below, and before they were allowed by the presiding judge. The action could not be continued to summon in the administrator, because, as no special damage is alleged, it does not survive. The authority of the attorney employed by the defend- ant, of course, terminated with his death. Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Gush. 408. The plaintiff under these circumstances excepts both to the allowance of the defendant's exceptions, and the refusal of the judge to order judgment on the 12 CONTRACT TO MARRY, verdict, upon her motion, which was filed before the defendant's death. As a matter of practice, at common law, as well as under the pro- visions of the Gen. Sts. c. 133, sec. 7, and c. 115, sec. 14, judgment will be entered on the verdict on motion, as of a preceding day or term of the court, whenever an action, continued or postponed for the purpose of obtaining a disposition thereof, which may relieve a dissatisfied party from a verdict, would otherwise fail by the death of a party to it. So, if the death occur after verdict, delay during the time taken for the argument of law questions upon which the validity of it depends, or for advisement thereon, will not be suffered to deprive one of the benefits to which he appears to have been justly entitled under it. Springfield v. Worcester, 2 Cush. 52; Currier v. Lowell, 16 Pick. 170. This case comes within these rules. The defendant's exceptions were presented and filed before the death of the defendant, judg- ment on the verdict was thereby delayed, and the court in now ren- dering judgment will go back to the time when it would have been rendered if no action had been taken to prevent it. This all proceeds on the supposition that the verdict is one which is open to no legal objection. When objections are suggested by exceptions regularly taken and filed, then it is manifestly proper that the order for judgment, as of a prior day or term, should not be made until the exceptions are regularly disposed of by a decision in favor of the verdict. And although technically there can be no appearance for a deceased party, yet this court will pass upon the questions so submitted, and hear suggestions as to their merits, from any one who holds the office of an attorney within the court. The exceptions of the defendant were therefore properly allowed, and the motion for judgment properly denied, for the time, as pre- mature. It remains to dispose of the exceptions of the defendant, taken at the trial. The court was asked to rule that, if the defendant was a married man at the time of his promise, the plaintiff could not be injured by a failure to perform, and though she had no knowledge of the fact at the time, could not maintain this action. This was properly refused. The defendant is not permitted to escape respon- sibility on the ground of his present legal inability to perform a promise of marriage to an innocent party. The damages to the plaintiff are certainly not diminished by the consideration that the promise was made under such circumstances. The strict rule that a consideration to support a promise is insufficient if its performance is utterly and naturally impossible, is met by the suggestion, that ILLEGAL CONSIDERATION. 13 even if the future performance here is to be treated as utterly im- possible, yet the detriment or disadvantage which must necessarily result to the plaintiff in relying for any time on the promise affords sufficient consideration to support the defendant's contract. 2 Par- sons on Contracts (5th ed.), 67; Wild v. Harris, 7 C. B. 999. The defendant also insists that the evidence of seduction was not admissible in aggravation of damages. But in a recent case the con- trary has been held by this court, on the ground that compensation to the plaintiff for the injury she has received by the breach of the contract cannot be fully reached without taking into account the situation in which she is left by the defendant's act. Sherman v. Razvson, 102 Mass. 395. The instructions actually given by the learned judge, as to the nature of the evidence by which the promise was to be proved, and the elements to be considered by the jury in estimating the damages, were full and accurate. The defendant's exceptions are accordingly overruled, and the plaintiff may now therefore renew her motion in the Superior Court, where the case remains, that judgment be rendered as of the day and term when the verdict was returned. Ordered accordingly. POLLOCK v. SULLIVAN. 53 Vt. 507.— 1881. Action on the case. Heard on demurrer at the September Term, 1880, Royce, J., presiding. The court, pro forma, sustained the demurrer. Redfield, J. The declaration counts tortwise, for fraud and deceit, whereby the plaintiff has suffered injury. It avers, in sub- stance, that the defendant, professing to be an unmarried man, paid his addresses to the plaintiff and offered himself in marriage to her, and that she, believing his pretentions and representations to be true, accepted his proffer, and agreed to marry him; and that, in fact, defendant at that time was living with his wife and children at St. Albans; and thereby she was defrauded and injured. To this declaration the defendant files a general and special demurrer. We have not carefully examined the several counts, to find whether some of them may not be technically defective under special demur- rer, but we think some of them may withstand that assault. The plaintiff avers fraud, and damages thereby occasioned. Fraud occa- sioning damage and injury, is actionable; otherwise persons may suffer injury by the wrongful acts of others, and the law afford no 14 CONTRACT TO MARRY. redress. This would bring the laws of the land into contempt. The demurrer confesses the truth of the facts alleged in the declaration. And we think the facts averred being true, are actionable. The facts alleged show that the plaintiff is wanting in discretion, if not in some of the more cardinal virtues; but that is all for the jury, and outside the law of the case. On demurrer to her averments and complaints, she is to be regarded as an innocent person, deceived and defrauded. The defence claims that the action should have been assumpsit for the breach of the contract. The adjudged cases seem to establish that the innocent party, in such case, may sustain an action for a breach of the promise of marriage; that the other party will not be permitted to allege that he cannot perform his contract because he had a wife when he agreed to marry another. If such action was brought, and the defendant should be foolhardy enough to offer to perform his contract, the plaintiff must desist, or subject herself to a criminal prosecution. The essential wrong to the plaintiff is, not that she has not attained a husband, as she expected ; but that she spent her time and money in arrangements and preparation for mar- riage with the defendant, when, in fact, he had then and now a wife, and was deluded into this relation by the fraud and falsehood of the defendant, and by such deception and fraud she has suffered griev- ously in property and reputation. This action is appropriate to redress this species of wrong. Whether the plaintiff has a character that can be impaired, or lost, can be ascertained in the proper forum before a jury. Howard v. Gould, 28 Vt. 523; 1 Hil. on Torts, p. 3, note a; Sedgw. on Dam. p. 48, and cases there cited; Chit, on Cont. 10th Am. ed., p. 750. The result is, the judgment of the County Court is reversed, and the demurrer overruled. The defendant, at the hearing, asked leave to replead, in case the judgment should be against him; the leave will be granted, on the usual terms, and the case is remanded. Reality of Consent. VAN HOUTEN v. MORSE. 162 Mass. 414. — 1894. Contract, for breach of promise of marriage. At the trial in this court, before Barker, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. Morton, J. The defence principally relied on in this case is that the promise which the jury have found was made was induced by REALITY OF CONSENT., 1 5 fraudulent conduct and representations and concealments on the part of the plaintiff with reference to various matters relating to her past life, to her parentage and family, and to her position and cir- cumstances. The defendant contends that the instructions of the court as to what constituted fraudulent concealment were not suffi- cient, and that certain requests which he made should have been given. The jury were correctly instructed that it was not the duty of a party, before making or accepting an offer of marriage, to communi- cate all the previous circumstances of his or her life; and that the parties would be bound, if they became engaged without making any investigations, and without receiving any assurances or representa- tions which led to the engagements, even though matters were dis- covered subsequently which, if known at the time, would have prevented the engagement, unless they were such as gave a right to the other party to terminate the contract upon their discovery. Whether the only matters which would give the defendant such a right were those relating to the chastity of the plaintiff, we have no need now to consider. No question was made by him as to the plaintiff's chastity; and the fact, if it was a fact, that the plaintiff had some negro blood in her veins, or that her motives were mercenary, or that there was a want of affection on her part, or that there was incompatibility resulting from disparity of age, difference in charac- ter and disposition, and other causes, which, apart from fraud, were the things relied on by the defendant, would not justify him as mat- ter of law in breaking the contract. Reynolds v. Reynolds, 3 Allen, 605; Coolidgev. Neat, 129 Mass. 146; Gring v. Lereh, 112 Penn. St. 244; Berry v. Bakeman, 44 Me. 164; Leeds v. Cook, 4 Esp. 256; Baker v. Cartwright, 10 C. B. (N. S.) 124; Beaehey v. Brown, EL, Bl. & El. 796; Young v. Murphy, 3 Bing. N. C. 54; Bench v. Merrick, 1 C. & K. 463. See also 2 Am. & Eng. Ency. of Law, 525, 526, for collection of cases. But in respect to what would, in view of the circumstances of this case, be such concealment on the part of the plaintiff as to constitute fraud, we think that the instructions hardly went far enough, or at least that it was possible that the jury may not have understood them as they were perhaps intended by the court to be understood. The jury were instructed that if the engagement was brought about, in whole or in part, by false repre- sentations, by concealments upon matters which were inquired about, or which the party had by universal consent the right to know, then the contract could not be enforced. And later they were told that the defendant was not bound if the contract was pro- cured by deception or by fraud, or by concealment which was fraud, I 6 CONTRACT TO MARRY. but that there was no fraudulent concealment by simply not commu- nicating information; that a promise would be valid, though made in complete ignorance of the antecedents of the parties, but that there was a different doctrine where matters were inquired about; and that, if either party made inquiries of the other with reference to family, position, or circumstances in the life or experience of the other, then, if wilful false statements were made with reference to any of those things which might fairly be considered as entering into the judgment of either party as to whether that party would or would not enter into a contract of marriage, then there would be a false representation. "That is," the court continued, "a statement which the party knows is false, or makes as true of his or her own knowledge, when it is in fact untrue, and without knowing that it is true, or if there is concealment of any such particular which is in- quired about, those circumstances will be sufficient to make void a contract entered into in consequence and relying upon them, unless they are of such a nature that no man would be justified in the exer- cise of any reasonable care in relying upon these statements." These instructions might, and probably would, lead the jury to infer that concealment on the part of the plaintiff would not consti- tute fraud, except as to matters that were inquired about by the defendant. But we think that if the plaintiff undertook, without inquiry from the defendant, to state facts relating to any circumstances in her history or life, or to her parentage or family, or to her former or present position, which were material, she was bound not only to state truly the facts which she narrated, but she was also bound not to suppress or conceal any facts which were necessary to a correct understanding on the part of the defendant of the facts which she stated; and if she wilfully concealed and suppressed such facts and thereby led the defendant to believe that the matters to which such statements related were different from what they actually were, she would be guilty of a fraudulent concealment. Kidney v. Stoddard, 7 Met. 252; Short v. Currier, 153 Mass. 182; Burns v. Dockray, 156 Mass. 135, 137; Prentiss v. Puss, 16 Me. 30; Ahvood v. Chapman, 68 Me. 38, 40, 41; Potts v. Chopin, 133 Mass. 276; Clark v. Baird, 5 Seld. 183; Brown v. Montgomery, 20 N. Y. 287; Devoe v. Brandt, 53 N. Y. 462; Hill v. Gray, 1 Stark. 434; Stevens v. Adamson, 2 Stark. 422; Arkwrigktv. Newbold, 17 Ch. D. 301, 317, 318; Aortson x . Pidg- way, 18 111. 23. Add. Torts, Wood's Edition, 1205. Mere silence on the part of the plaintiff, without inquiry by the defendant, though resulting in the concealment of matters, which would have prevented the engagement if known, would not consti- REALITY OF CONSENT. 1/ tute fraud on her part. Potts v. C/iapin y ubi supra. But a partial and fragmentary disclosure, accompanied by the wilful concealment of material and qualifying facts, would be as much of a fraud as actual misrepresentation, and in effect would be misrepresentation. Arkwright v. Newbold, ubi supra. There was evidence that the plaintiff represented to the defendant before the engagement that she had been previously married, and had lived with her husband in Spokane and other places five or six years, and that a few weeks before she left Spokane for Boston she had obtained a divorce from him on account of his bad conduct and cruelty to her. So far as appears from the exceptions, that was all that the plaintiff told the defendant about the divorce before the engagement. But there was testimony tending to show that at the same time she procured a divorce from her husband he procured one from her, and that the cross bill filed by him in answer to her com- plaint, and on which his divorce was granted, charged her with being a woman of violent and ungovernable temper, and of jealous, revenge- ful and vicious disposition, and with having, within two weeks after her marriage, commenced a systematic course of violent, abusive, and cruel conduct towards him, which finally broke down his health, and compelled him to leave her. He also charged her with assault- ing him with a carving knife, and with using profane epithets in regard to himself, his relatives and friends, and alleged numerous specific acts of violence and passion. We think that the divorce which her husband obtained from the plaintiff and the charges contained in the cross bill were material facts, and that if the plaintiff knew them when she told the defendant that she had obtained a divorce from her husband for his cruelty, and wilfully suppressed them, she was guilty of a fraudulent conceal- ment and misrepresentation. To say that she had obtained a divorce from her husband for his cruelty, and omit all reference to his divorce. and the grounds on which he obtained it, was to state the matter in such a way as to convey a different impression from that which would have been conveyed if all the facts had been stated, and was misleading. Though it does not appear very clearly from the exceptions whether she did or did not know of the divorce which her husband had obtained from her, and of the charges which he made in his cross bill, it is fairly to be inferred that she was not ignorant either of the divorce or of the charges. There was testi- mony tending to show that, when the defendant informed her of them, she did not express ignorance of them, but said that they were not true, and the trial seems to have proceeded on the assumption that she knew of them. Moreover, though possible, it is hardly [Domestic Relations — 2.] 1 8 CONTRACT TO MARRY. probable that she was unacquainted with the fact that he had ob- tained a divorce, or with the grounds on which he got it. So with regard to her parentage and family. She was under no obligation to tell the defendant about them in the absence of inquiry by him. But if she voluntarily undertook to make any statements concerning them, she was bound not only to state truly what she told, but also not to suppress or conceal facts which would mate- rially qualify those which she stated. If, for instance, as the evi- dence tends to show, she told the defendant that her father and mother were both of the best white families in Charleston, South Carolina; that her father was a distinguished lawyer; that her mother was equally high bred; and that after his death her mother married a man by the name of Smith, with which marriage her mother's folks were dissatisfied, and that on that account the family moved to California; — but if she suppressed the fact that Smith was a colored barber and an octoroon and her reputed father, and that her mother had negro blood in her veins, and was about one-eighth negro, the impression as to the standing of herself and family, and the credibility of her statement respecting her par- entage, would or might be quite different from that which would be likely to be the case if she had told the whole truth. These facts, if they were facts, were necessary to a correct understanding of the real state of the circumstances of her family and of her previous history, and were or might be found to be material; and a wilful sup- pression of them on her part, in view of what there was evidence that she told would constitute or might be found to constitute a fraud upon the defendant. Wharton v. Lewis, i C. & P. 529. The defendant's requests did not state the law with entire correct- ness, and did not direct the attention of the court particularly to the effect of suppression by the plaintiff of facts which would materially modify those which she voluntarily told the defendant respecting the divorce and her parentage and family. They did, howe*ver, call for instructions as to what would constitute fraudulent concealment in respect to those matters, and it is evident from the charge that the court understood them to do so. In giving its instructions the court stated the law in reference to things that were inquired about in such a manner that the jury might infer that as to matters not inquired about the suppression of material facts would not constitute fraudulent concealment. As to an important phase of the case this was erroneous, and the jury may have been misled by it; and though the defendant did not call the attention of the court to that aspect of the case any more than to what would constitute fraudu- lent concealment, in case inquiry was made, we think that the whole REALITY OF CONSENT. 19 matter was fairly within the scope of his requests, and that he might well assume that the instructions as given stated, in the opinion of the court, the rules of law properly applicable to it. Cork v. Blos- som, ante, 330. The court are not unanimous in their view of the questions presented by the bill of exceptions, or in their construc- tion of the judge's charge, but there is no difference of opinion with regard to the principles of law to be applied to the case. Among other rulings which the defendant requested was the fol- lowing: " If mutual promises to marry were made, and the defend- ant was influenced to do so by the fraud or deception of the plain- tiff as to her life, lineage, character, traits of character, or property, or former condition of life, his promise does not bind him. ' ' In refer- ence to this the court said: " That I should give with the qualifica- tion which I have made generally upon the subject. I think there is nothing objectionable in that." We understand that by "the quali- fication " referred to was meant what the court had said previously in regard to its not being the duty of a party, before making or accept- ing an offer of marriage, to communicate all the previous circum- stances of his or her life, and that a party would not have the right to terminate a contract to marry on the ground of fraud, upon subse- quently discovering matters which, if seasonably known, might have prevented the engagement, though not sufficient to justify a party in breaking it off. As thus qualified the instruction was correct, and the defendant had no proper ground of exception. But we do not think that it meets the objections of the defendant to the sufficiency of the charge in regard to what constituted fraudulent concealment. The exceptions state that " the jury were instructed at length upon the law applicable to actions for breach of promise of marriage, to which instructions no objection was made, except as appears by the bill of exceptions." We do not understand from this that any instructions on the matter of fraud which were deemed material upon any of the questions raised by the defendant are omitted from the bill of exceptions, but we infer that all of the instructions perti- nent to the requests and contentions of the defendant on that sub- ject are included in the exceptions. We discover no error in the instructions, or rulings or refusals to rule, or in the admission of evidence, or in the conduct of the trial, except as above stated. * * * Exceptions sustained. 1 1 " If a man igno/ant of the real character of a woman enters into an agree- ment of this nature [to marry] and afterwards discovers her to be lewd and un- chaste, it is sufficient justification for him to refuse compliance with it." — Budd v. Crca, 6 N. J. L., 450, 455. For disease as justification for breach of promise, see Shackleford v. Hamilton, 93 Ky. 80. (s. c. with note, 15 L. R. A. 531.) 20 CONTRACT TO MARRY. Survival of Action for Breach of Promise. STEBBINS v. PALMER. i Pick. (Mass.) 71. — 1822. Julia Palmer, the respondent, brought an action for breach of promise of marriage against Benjamin Stebbins, who died while the action was pending. Nearly two years after his death, she made application to the judge of probate representing that no person had taken out letters of administration on his estate, that she was a creditor, and that at the time of his death she had an action pend- ing against him, which had been continued from time to time, to enable her to summon in any person who should be appointed administrator; and praying that letters of administration might be granted to such person as the judge should think proper. It was accordingly decreed that letters of administration should be granted. Marytta Stebbins, the widow of Benjamin, having omitted to appeal from this decree in the ordinary way, now petitioned the court for leave to enter an appeal, pursuant to St. 181 7, c. 190, sec. 8, alleging that her omission arose from mistake. And whether justice required a revision of the decree, depended on the question, whether the respondent was interested as a creditor in the estate of the deceased. Wilde, J. [After stating the grounds on which the court thought it reasonable that the petitioner should be permitted to enter her appeal, in conformity with St. 18 17, c. 190, sec. 8, if she could show that justice required a revision of the decree, he pro- ceeded] : This she attempts by referring us to the grounds on which the decree is founded, which, her counsel have argued, are insufficient in law to sustain it. They contend, that no one interested in the estate is desirous that administration should be granted, and that there is no necessity for incurring such an expense. If this has been made to appear, the decree ought to be reversed. Generally, administration ought not to be granted, except on the application of some one entitled to administration, or who is inter- ested in the estate to be administered upon. The question then is, whether the respondent is interested in, or has any claim upon, the estate of the deceased. At the time of his decease she had an action against him pending in this court, founded on the breach of a prom- ise of marriage; and if this action by law survives, there is good ground for granting letters of administration, whether strictly speak- ing she is a creditor or not; for in such case justice would require SURVIVAL OF ACTION FOR BREACH OF PROMISE. 21 that administration should be granted, so that the action might be prosecuted to final judgment. The principal question, therefore, is, whether such an action by law survives. The maxim, actio personalis moritur cum persona, decides nothing, for it is admitted that it is not applicable generally to contracts; and, although it commonly does apply, where the cause of action is a tort, or arises ex delicto, yet in many such cases the tort may be waived, and in an action founded on the principles of civil obligation, dam- ages may be recovered for trespass. Where there is a duty, as well as a wrong, an action will survive against the executor. He is respon- sible for the debts of the deceased, and for all undertakings and acts that create a debt, as far as there are assets. And it seems to make no difference, whether the debt be certain or uncertain, or whether it arises from a promise express or implied. If the cause of action has been beneficial to the testator, the executor shall be charged. "Where," says Lord Mansfield, "besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor; but if it is a sort of injury by which the offender acquires no gain to him- self at the expense of the sufferer, the person injured has only a repa- ration for the delicti/in in damages to be assessed by a jury." Cowp. 376. The distinction seems to be between causes of action which affect the estate and those which affect the person only; the former survive for or against the executor, and the latter die with the person. According to this distinction, an action for the breach of a prom- ise of marriage would not survive; for it is a contract merely per- sonal ; at least it does not necessarily affect property. The principal ground of damages is disappointed hope; the injury complained of is violated faith, more resembling in substance deceit than fraud, than a mere common breach of promise. The damages may be, and frequently are, vindictive; and, if they could be proved against the executor, might render the estate insolvent, to the loss and injury of creditors. For these and other reasons, it has been settled, in England, that such an action does not survive for an executor. If this is rightly settled, it is decisive, for the law is unquestionably the same, whichever party may die. The case of Chamberlain v. Williamson, 2 M. & S. 408, was con- sidered as an action of the first impression; which shows at least what the law was supposed to be before. This is a consideration of no small weight, which, joined to the principles and reasoning of that case, is entirely convincing. The respondent has laid no special damages in her declaration, and has not averred in her application to the judge of probate that 22 CONTRACT TO MARRY. she has sustained any; if she has any proof to support such an aver- ment, she may apply anew to the judge of probate, and, if adminis- tration should be granted, may commence a new action. Whether in such an action for special damages she would be allowed to recover full damages or would be restricted to those which relate to property, we do not now determine. 1 Decree of judge of probate reversed. 1 See also Hayden v. Vreeland, 37 N. J. L. 372; and Kelley v. Riley, supra. CHAPTER II. CONTRACT OF MARRIAGE. Marriage as a Contract. MAYNARD v. HILL. 125 U. S. 190.— 1887. [Reported herein at p. 242.] Common Law Marriage. — Requisites of Form. MEISTER v. MOORE. 96 U. S. 76.— 1877. Error to the Circuit Court of the United States for the Western District of Pennsylvania. This was ejectment brought October 9, 1873, by Bernard L. Meister, for the possession of certain lots of ground in Pittsburg, Pa. Both parties claimed under William Mowry; the plaintiff, as the alienee of the alleged wife and daughter of said William, and the de- fendants, as the vendees of his mother, in whom the title of the property vested, if he died unmarried and without issue. Mr. Justice Strong delivered the opinion of the court. The learned judge of the Circuit Court instructed the jury, that, if neither a minister nor a magistrate was present at the alleged marriage of William A. Mowry and the daughter of the Indian Pero, the marriage was invalid under the Michigan statute; and this instruction is now alleged to have been erroneous. It certainly withdrew from the consideration of the jury all evidence, if any there was, of informal marriage by contract per verba de preesenti. That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country, from its earliest settlement to the present day. Marriage is every- where regarded as a civil contract. Statutes in many of the states, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle that, where a statute creates a right and provides a remedy for its [23] 24 CONTRACT OF MARRIAGE. enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly ex- pressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an en- actment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publications of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a com- mon-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwith- standing the statutes, unless they contain express words of a nullity. This is the conclusion reached by Mr. Bishop, after an examination of the authorities. Bishop, Mar. and Div., sec. 283 and notes. We do not propose to examine in detail the numerous decis- ions that have been made by the state courts. In many of the states, enactments exist very similar to the Michigan statute; but their object has manifestly been, not to declare what shall be requi- site to the validity of a marriage, but to provide a legitimate mode of solemnizing it. They speak of the celebration of its rite rather than of its validity, and they address themselves principally to the functionaries they authorize to perform the ceremony. In most cases, the leading purpose is to secure a registration of marriages, and evidence of which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by an exemplification of the registry. In a small number of the states, it must be admitted, such statutes have been construed as denying validity to marriages not formed according to the statutory directions. Notably has this been so in North Carolina and in Tennessee, where the statute of North Carolina was in force. But the statute contained a provision declaring null and void all marriages solemnized as directed, with- out a license first had. So, in Massachusetts, it was early decided that a statute very like the Michigan statute rendered illegal a mar- riage which would have been good at common law, but which was not entered into in the manner directed by the written law. Mil- ford v. Worcester, 7 Mass. 48. It may be well doubted, however, whether such is now the law in that state. In Parton v. Henry, 1 Gray (Mass.), 119, where the question was, whether a marriage of a girl only thirteen years old, married without parental consent, was COMMON LAW MARRIAGE — REQUISITES OF FORM. 25 a valid marriage (the statutes prohibiting clergymen and magis- trates from solemnizing marriages of females under eighteen, with- out the consent of parents or guardians), the court held it good and binding, notwithstanding the statute. In speaking of the effect of statutes regulating marriage, including the Massachusetts statute (which, as we have said, contained all the provisions of the Michigan one), the court said: " The effect of these and similar statutes is not to render such marriages, when duly solemnized, void, although the statute provisions have not been complied with. They are in- tended as directory only upon ministers and magistrates, and to pre- vent as far as possible, by penalties on them, the solemnization of marriages when the prescribed conditions and formalities have not been fulfilled. But, in the absence of any provision declaring mar- riages not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages regularly made according to the common law are valid and binding, though had in violation of the specific regulations imposed by statute." There are two or three other states in which decisions have been made like that in 7th Massachusetts. We will not undertake to cite those which hold a different doc- trine, one in accord with the opinion we have cited from 1 Gray. Reference is made to them in Bishop, Mar. & Div., sec. 283, ct seq.; in Reeve's Domestic Relations, 199, 200; in 2 Kent, Com. 90, 91; and in 2 Greenleaf on Evidence. The rule deduced by all these writers from the decided cases is thus stated by Mr. Greenleaf: — " Though in most, if not all, the United States there are statutes regulating the celebration of marriage rites, and inflicting penalties on all who disobey the regulations, yet it is generally considered, that, in the absence of any positive statute declaring that all mar- riages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage, regularly made according to the common law, without observing the statute regulations would still be a valid marriage." As before remarked, the statutes are held merely directory; because marriage is a thing of common right, because it is the policy of the state to encourage it, and because, as has sometimes been said, any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law. The Michigan statute differs in no essential particular from those of other States which have generally been so construed. It does not declare marriages void which have not been entered into in the presence of a minister or magistrate. It does not deny the validity 26 CONTRACT OF MARRIAGE. to marriages which are good at common law. The most that can be said of it, that it contains implications of an intention that all mar- riages, except some particularly mentioned, should be celebrated in the manner prescribed. The sixth section declares how they may be solemnized. The seventh describes what shall be required of justices of the peace and ministers of the gospel before they solemn- ize any marriage. The eighth declares that in every case, that is, whenever any marriage shall be solemnized in the manner described in the act, there shall be at least two witnesses present beside the minister or magistrate. The ninth, tenth, eleventh, sixteenth, and seventeenth sections provide for certificates, registers, and exempli- fications of records of marriages solemnized by magistrates and ministers. The twelfth and thirteenth impose penalties upon jus- tices and ministers joining persons in marriage contrary to the pro- visions of the act, and upon persons joining others in marriage, knowing that they are not lawfully authorized so to do. The four- teenth and fifteenth sections are those upon which most reliance is placed in support of the charge of the Circuit Court. The former declares that no marriage solemnized before any person professing to be a justice of the peace or minister of the gospel shall be deemed or adjudged to be void on account of any want of jurisdic- tion or authority in such supposed minister or justice, provided the marriage be consummated in the full belief on the part of the per- sons so married, or either of them, that they have been lawfully joined in marriage. This, it is argued, raises an implication that marriages not in the presence of a minister or justice, or one pro- fessing to be such, were intended to be declared void. But the im- plication is not necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by the act of the legis- lature. The fifteenth section exempts people called Quakers, or Friends, from the operation of the act, as also Menonists. As to them the act gives no directions. From this, also, an inference is attempted to be drawn that lawful marriages of all other persons must be in the mode directed or allowed. We think the inference is not a necessary one. Both these sections, the fourteenth and fif- teenth, are to be found in the acts of other states, in which it has been decided that the statutes do not make invalid common-law marriages. It is unnecessary, however, to pursue this line of thought. If there has been a construction given to the statute by the Supreme Court of Michigan, that construction must, in this case, be control- ling with us. And we think the meaning and effect of the statute COMMON LAW MARRIAGE — REQUISITES OF FORM. 2J has been declared by that court in the case of Hutchins v. Kimmcll, 31 Mich. 126, a case decided on the 13th of January, 1875. There, it is true, the direct question was, whether a marriage had been effected in a foreign country. But in considering it, the court found it necessary to declare what the law of the state was; and it was thus stated by Cooley, J.: "Had the supposed marriage taken place in this state, evidence that a ceremony was performed osten- sibly in celebration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dis- pensed with, if the parties agreed presently to take each other for husband and wife, and from that time live together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would sub- ject them and others to legal penalties for a disregard of its obliga- tions. This has become the settled doctrine of the American courts ; the few cases of dissent, or apparent dissent, being borne down by the great weight of authority in favor of the rule as we have stated it;" citing a large number of authorities and concluding, " such being the law of this state." We cannot regard this as mere obiter dicta. It is rather an authoritative declaration of what is the law of the state, notwithstanding the statute regulating marriages. And if the law in 1875, it must have been the law in 1845, when, it is claimed, Mowry and the Indian girl were married; for it is not claimed that any change of the law was made between the time when the statute was enacted and 1875. The decision of the Michigan Supreme Court had not been made when this case was tried in the court below. Had it been, it would doubtless have been followed by the learned and careful circuit judge. But, accepting it as the law of Michigan, we are constrained to rule there was error in charg- ing the jury, that, if they found neither a minister nor a magistrate was present at the alleged marriage, such marriage was invalid, and the verdict should be for the defendants. It has been argued, however, that there was no evidence of any marriage good at common law, which could be submitted to the jury, and, therefore, that the error of the court could have done the plaintiff no harm. If all the evidence given or legally offered were before us, we might be of that opinion; but the record does not contain it all, and we are unable, therefore, to say the ruling of the court is immaterial. The case must, therefore, go back for a new 28 CONTRACT OF MARRIAGE. trial. We do not consider the other questions presented. They may not arise on the second trial. Judgment reversed, and new trial ordered. 1 Mitchell, J., in CAREY v. HULETT {In Re HU- LETT'S ESTATE). 69 N. W. Rep.31, S3- (— Minn. — .— 1896.) The respondent had been for a long time prior to the execution of the marriage contract 2 in the employment of Hulettas housekeeper at his farm at Stoney Point some miles out of the city of Duluth. Her testimony is that immediately after the execution of this contract she moved into his room, and that from henceforth until his death they occupied the same sleeping apartment, and cohabited together as husband and wife. But she admits that it was agreed between them that their marriage was to be kept secret until they could move into Duluth and go to housekeeping in a house which Hulett owned in that city. While a feeble effort was made to prove that their marital relation had become known to one or two persons, yet we consider the evidence conclusive that their marriage contract was kept secret, that they never publicly assumed marital relations, or held themselves out to the public as husband and wife, but, on the contrary, so conducted themselves as to leave the public under the impression that their former relations of employer and housekeeper remained unchanged. Upon this state of facts the contention of the appellants is that there was no marriage, notwithstanding the execution by them of the written contract; that, in order to consti- tute a valid common-law marriage, the contract, although in verba Jt prcescnti, must be followed by habit or reputation of marriage — that is, as we understand counsel, by the public assumption of mari- tal relations. We do not so understand the law. The law views marriage as being merely a civil contract, not differing from any other contract, except that it is not revocable or dissoluble at the will of the parties. The essence of the contract of marriage is the consent 1 In McLaughlin's Estate (4 Wash. St. 570. — 1892), the Supreme Court of the State of Washington, in declaring common-law marriages invalid, reviews at length the decisions of various other jurisdictions upon the subject. 2 The written contract is as follows: "January 6, 1892. Contract of mar- riage between N. Hulett and Mrs. L. A. Pomeroy. Believing a marriage by con- tract to be perfectly lawful we do hereby agree to be husband and wife and to hereafter live together as such. In witness whereof we have hereunto set our hands the day and year first above written. (Signed) N. Hulett, L. A. Pomeroy." COMMON LAW MARRIAGE — REQUISITES OF FORM. 29 of the parties, as in the case of any other contract; and, whenever there is a present, perfect consent to be husband and wife, the con- tract of marriage is completed. The authorities are practically unanimous to this effect. Marriage is a civil contract jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or public law. If the contract is made per verba de preesenti, and remains without cohabitation, or if made per verba de future?, and be followed by consummation, it amounts to a valid marriage, in the absence of any civil regulations to the con- trary. 2 Kent, Com. p. 87; 2 Greenl. Ev. sec. 460; 1 Bish. Mar. & Div. sees. 218, 227-229. The maxim of the civil law was " consensus non concubitus facit matrimoniiim." The whole law of the subject is that, to render competent parties husband and wife, they must and need only agree in the present tense to be such, no time being contem- plated to elapse before the assumption of the status. If cohabita- tion follows, it adds nothing to the law, although it may be evidence of marriage. It is mutual present consent, lawfully expressed, which makes the marriage. 1 Bish. Mar. Div. & Sep. sees. 239, 313, 315, 317. See, also, the leading case of Dalrymple v. Dalrymple, 2 Hagg. Consist. 54, which is the foundation of much of the law on the sub- ject. An agreement to keep the marriage secret does not invalidate it, although the fact of secrecy might be evidence that no marriage ever took place. Dalrymple v. Dalrymple, supra. The only two cases which we have found in which anything to the contrary is actually decided, are Reg. v. Mil/is, 10 Clark & F. 534, and Jewell v. Jewell, 1 How. 219; the court in each case being equally divided. But these cases have never been recognized as the law, either in England or in this country. Counsel for appellants contend, how- ever, that the law is otherwise in this state; State v. Worthingham, 23 Minn. 528, in which this court used the following language: " Consent, freely given, is the essence of the contract. A mutual agreement, therefore, between competent parties, per verba de prce- senti, to take each other for husband and wife, deliberately made, and acted upon by living together professedly in that relation, is held by the great weight of American authority sufficient to consti- tute a valid marriage with all its legal incidents; " citing Hutchins v. Kimmell, 31 Mich. 126. Similar expressions' have been sometimes used by other courts, but upon examination it will be found that in none of them was it ever decided that, although the parties mutually agreed per verba de prcesenti to take each other for husband ami wife, it was necessary, in order to constitute a valid marriage, that this agreement should have been consequently acted upon by their living together professedly as husband and wife. In some cases where 30 CONTRACT OF MARRIAGE. such expressions were used the court was merely stating a proven or admitted fact in that particular case, while in others the contract of marriage was sought to be proved by habit and repute, and the courts merely meant that the act of parties in holding themselves out as husband and wife is evidence of a marriage. In State v. Worthingham, supra, which was a prosecution for bastardy, the de- fendant offered as proof of his marriage to the mother of the child that during all the time they lived and cohabited together the woman held herself out to her friends generally as his wife, and that both of them represented to the world that they had been married. The point really decided by the court, and evidently the only one it had in mind was that this was competent evidence of a marriage, and that no formal solemnization of ceremony was necessary to give it valid- ity. The statement in the opinion already quoted is probably sub- ject to the criticism that it does not accurately discriminate between the fact of marriage and the proof of it. The case of Hutchins v. Kimmcll, supra, cited by this court, does contain such expressions as "followed by cohabitation," and "from that time lived together professedly in that relation; " but this language was evidently used simply as a recital of the actual facts in that particular case. There is nothing in the opinion indicating that the court intended to hold that a mutual, present consent to be husband and wife will not con- stitute a valid marriage unless followed by cohabitation of the par- ties, and a holding of themselves out as man and wife. Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345, and Id., 79 Cal. 633, 22 Pac. 26, 131, is not in point, for the reason that section 55 of the Civil Code of that state provides that " consent alone will not constitute mar- riage; it must be followed by a solemnization or by a mutual assump- tion of marital rights, duties, or obligations." In view of the increasing number of common-law widows laying claim (in many instances, doubtless, fraudulently) to the estates of deceased men of wealth, it is a question for the legislature whether the common law should not be changed; but with that the courts have nothing to do. DUNCAN v. DUNCAN. 10 Ohio St. 181. — 1859. Petition in error in the nature of a bill of review. Reserved in Cuyahoga county. Brinckerhoff, C. J. This is a petition in error, in the nature of a bill in review, filed in the District Court of Cuyahoga county to reverse a decree of that court, and reserved for decision by this court. COMMON LAW MARRIAGE — REQUISITES OF FORM. 3 1 The original case was a bill in chancery, filed in the Common Pleas of Cuyahoga county, by Eliza Duncan, now defendant in error, against Robert Duncan, now plaintiff in error, and others, alleging that she is the widow of Alexander Duncan, deceased; that said Alexander died seized of certain real estate described; and praying the assignment to her of dower therein. The case, having been determined in the Common Pleas, was taken, by appeal, to the District Court, which court decreed dower to Eliza, as prayed for in her bill. To reverse this decree, this petition is prosecuted. The facts of the case, on which this decree was based, as clearly appear from the bill, answers, exhibits, and testimony, are substan- tially these: Alexander Duncan, a native of Ireland, was married in that coun- try. He abandoned his wife, came to this country, bringing with him two sons (of whom the plaintiff in error is one), the only off" spring of such marriage, and settled at Cleveland, in this state. Soon afterward, the complainant below, Eliza, who had been brought up and lived in the same neighborhood with Alexander Duncan, in Ireland, and well knew both him and his wife, as well as the fact of his marriage, came over the water to Cleveland at his request, and began to cohabit with him as his wife, under an agreement or under- standing that, as soon as he could procure a divorce from his wife left behind in the old country, he would marry her, Eliza. He introduced and spoke of her as his wife, and she passed among the neighbors as such. Two children were the result of this adulterous connection; for the wife in Ireland still lived, and no divorce was ever obtained. Finally, news arrived (and which seems to have been true), of the death of the old wife in a poor-house in Ireland. The promise that " he would marry her " was then renewed to Eliza; but no other marriage was ever celebrated, in any form, between them, and they continued to cohabit as before; and he, soon after, sickened and died. The District Court having, on this state of facts, decreed dower to Eliza, the sole question made by this proceeding in review is, whether a contract to marry in the future, followed by cohabitation as husband and wife, is, per st\ a marriage ? The proof of some of the most important of the facts above men- tioned, rests mainly upon declarations made by Eliza, after the death of Alexander Duncan; and it is objected that evidence of this kind is unreliable and unsatisfactory. This is often, and perhaps ordinarily so; but it is not always, or necessarily so, nor is it so in this case. She had ample means of knowing as to the facts of which she spoke; she made the declarations deliberately and repeatedly, 32 CONTRACT OF MARRIAGE. under circumstances rebutting all suspicion of fraud or circumven- tion; and if they were otherwise, she had every apparent interest so to declare. The declarations of a party, made under such circum- stances, often constitute the strongest and most satisfactory evi- dence. We desire that it shall be distinctly noticed that this case presents no question as to the validity of a marriage contract (otherwise than in accordance with the provisions of our statute on that subject), per verba de prcesenti, as if, the parties being competent to contract the relation of marriage, the man shall say, in the presence of witnesses, "I hereby take you for my wife;" and the woman shall say, " I hereby take you for my husband." The facts of the case make no such question; and we leave it where we find it. Nor is this a question as to the presumption of a marriage from reputation; or from circumstances, such as cohabitation, holding each other out as husband and wife, and the like. Such presump- tion, in the absence of evidence to rebut it, is often and properly made. But the question, as before stated, is simply this, whether a contract to marry per verba de futuro, followed by cohabitation as husband and wife, is in itself a marriage ? For, in this case, the evi- dence of the fact is clear and explicit, and there is no room for pre- sumption. The idea that a contract for a future marriage, followed by cohabi- tation as husband and wife, is itself a valid marriage at common law, seems to have obtained currency on the credit of remarks made by several elementary writers of distinguished learning and ability, and by certain judges of high character, speaking by way of obiter dicta, in cases in which this question was really in no way involved. But the better opinion now seems to be, that these remarks are unsup- ported by any case actually adjudicated and entitled to be con- sidered as authoritative; and that such a contract never was a good marriage at common law, either in this country or in England; and the mistaken doctrine seems to have originated, either in the inad- vertent confounding of what might, in the absence of rebutting evi- dence, be good presumptive evidence of a marriage, with marriage itself; or from the fact that such a contract per verba de futuro, followed by cohabitation, was one of which the canon law, as administered by ecclesiastical courts in England, until restrained by statute, would enforce the specific performance. Chancellor Kent, 2 Com. 87, says: " If the contract be madeyV/- verba de prasenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to valid marriage in the absence of all civil regulations to the contrary, COMMON LAW MARRIAGE — REQUISITES OF FORM. 33 and which the parties (being competent as to age and consent) can- not dissolve, and it is equally binding as if made in facie ecclesice." In support of this proposition he cites no authority. Mr. Greenleaf, in his work on Evidence, vol. 2, sec. 460, states the same doctrine in the same language, and cites Kent, Com. 87; Fenton v. Reed, 4 Johns. 52, and Jackson v. Winne 7 Wend. 47. Now, neither of these cases sustain the doctrine of his text. The former was a case simply where marriage was presumed, in the absence of evidence to the contrary, from circumstantial evidence, such as cohabitation, reputation, acknowledgment of the parties, etc. ; and the latter case was one of marriage per verba de prcesenH. The same doctrine of marriage per verba de futuro is recognized in the remarks of Chief Justice Boyle in Demarsely v. FisJilev, 3 A. K. Marsh, 369, and in those of Cowen, J., in Starr v. Peek, 1 Hill, 270. But neither of those cases involved this question, and the remarks of those learned judges were, therefore, incidental, and outside of the cases under consideration before them. Bouvier, in his institutes, vol. 1, p. no, lays down the same doc- trine as Kent and Greenleaf, in the same language, and cites Kent and Greenleaf, ubi supra, Fenton v. Feed, and Jackson v. Winne, be- fore referred to, and also Cram v. Burnhani, 5 Greenl. 213; Hantz v. Sealy, 6 Binn. 405; and Bac. Abr., Marriage, B. Cram v. Burnham was a suit by Cram, upon a promissory note given to his pretended wife, with whom he was cohabiting as a wife, but, as the proof showed, really in a state of adultery. The court, in deciding the case, say, that if the proof had stopped with the proof of cohabitation, a marriage might have been presumed; but as the proof rebutted the presumption of marriage arising from the fact of cohabitation, the plaintiff could not recover in his own name, and have judgment against him. And in so far as the case has any bearing upon the question before us, its authority is against, rather than in favor of, the proposition which it was cited to sustain. Hantz v. Sealy is equally far from sustaining the doctrine in support of which it is cited, except as to the validity of a marriage by words of contract in the present tense. Marriage or not, was the issue of the case. The words proved, on the part of the man, were " I take you for my wife; " and the woman, being told that if she would say the same thing, the marriage would be complete, answered, "To be sure he is my husband, good enough." The court held that these were not words, on the part of the woman at least, of present contract, but had reference to the past, and did not constitute a marriage. The citation from Bacon's Abridgement is this: " A contract in futuro, as, I will marry you, etc., may be enforced in the spiritual court, but [Domestic Relations — 3.] 34 CONTRACT OF MARRIAGE. such contract either party may release; also, if either party marry another person, such second marriage dissolves the contract." This citation, so far from supporting the proposition of Bouvier, goes only to show the correctness of the distinction above mentioned, to wit, that such a contract is no marriage, but it is only a contract which might, at one time in England, have been enforced in the spiritual courts and for a breach of which the law now gives a remedy in damages. Blackstone, i Comm. 439, says: " Any contract made per verba de prcesenti, or in words of the present tense, and in the case of cohabitation, per verba de futuro, also, between persons able to con- tract, was, before the late act, deemed a valid marriage to many pur- poses; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesice." What these " many purposes " for which a marriage per verba de futuro was valid, were, does not very clearly appear; and, whatever they may have been, it seems now to be pretty well settled that they did not embrace a right to dower on the part of the wife, nor the right to administer on her estate or to her property, on the part of the husband, nor the legitimacy of offspring, nor the avoiding of a subsequent marriage pending the first. 2 Bright on Husband and Wife, 397. In Jewell v. Jewell, 17 Peters, 213, the Supreme Court of the United States was equally divided on this question ; and the remarks of the court in Patton v. Philadelphia and New Orleans, 1 La. Ann. Rep. 98, are obiter. We have been cited to no case, and we can find none, decided either in England or the United States, to which such a marriage as this is claimed to be has been held valid. On the other hand, the well considered case of Cheney v. Arnold, recently decided unani- mously by the Court of Appeals of New York, 15 N. Y. (1 Smith), 345, is directly in point against it. That was an action for the recovery of real estate by a husband in right of his wife, who claimed as heir to her deceased father. She was the fruit of a cohabitation following a contract to marry per verba de futuro. It was a question of legitimacy only. The court, after a somewhat elaborate review of the whole subject, disapproved of the dictum of Cowen, J., in Starr v. Peck, before cited, and held such contract to be no marriage in fact or at common law. The Queen v. Millis. 10 Clark & Finnelly, 534, was a case in the House of Lords, in error to the Court of Queen's Bench in Ireland. The case arose upon a prosecution against Millis for bigamy, he having been married in Ireland per verba de prcesenti, by a Presbyte- rian minister according to the form of that church, and, leaving the COMMON LAW MARRIAGE — REQUISITES OF FORM. 35 first, married another woman in England, in the face of the church. The case turned upon the question, which was formally put by the House of Lords to the judges of Westminster Hall, for their opin- ion, whether the first marriage was valid as a marriage at common law. The judges, not having seats in the House of Lords, through C. J. Tindal, of the Common Pleas, gave a unanimous opinion against the validity of the first marriage. In this the law lords, Lynd- hurst, Cottenham, and Abinger, concurred. Brougham, Campbell, and Denman, were the other way. C. J. Tindal, and the six law lords above named, all delivered elaborate opinions, indicating much care and antiquarian research; and judgment was given against the validity of the first marriage. But, while the opinion of the eminent jurists of the kingdom was thus nearly balanced as to the validity, at common law, of a marriage by words of present contract, and not in the face of the church, there seems to have been no difference of opinion among them as to the invalidity of a marriage per verba de futuro, though followed by cohabitation. All of them are careful to distinguish the case before them from such a case, and either tacitly or expressly to admit the invalidity of the latter. And all of them, except Lord Brougham, admit that a marriage not celebrated in the face of the church, whatever else it may have been good for, did not carry with it the incident of dower. And the state of the law, as now understood in England, may be summed up as we find it in Kerr's Blackstone, 458: " Any contract made per verba de prcesc/iti, or in words of the present tense, and in the case of cohabitation, per verba de future, also, between parties able to contract, was, before the statute of George II, so far a valid marriage, that the parties might be compelled in the spiritual courts to celebrate it in facie ecclesice. But these verbal contracts are now of no force to compel a future marriage; their only operation being to give the party who is willing to perform his promise a right of civil action against the one who refuses to do so." Finding ourselves, then, compelled by no preponderating force of authority to the adoption of a doctrine so loose as that which would be necessary to sustain the marriage claimed to exist in this case, we are unwilling to do so. It seems to us that grave considerations of public policy forbid it; but it would be alien to the customs and ideas of our people, and would shock their sense of propriety and decency. That it would tend to weaken the public estimate of the sanctity of the marriage relation; to obscure the certainty of the rights of inheritance; would be opening a door to false pretenses of marriage, and to the imposition upon estates of supposititious heirs; 36 CONTRACT OF MARRIAGE. and would place honest, God-ordained matrimony and mere meretri- cious cohabitations too nearly on a level with each other. We are of opinion that the decree of the District Court ought to be reversed, and the original bill dismissed. Judgment accordingly. Durfee, C. J., IN PECK v. PECK. 12 R. I. 488, 489.— 1880. We are of opinion that a mere executory agreement to marry does not become consummated by copulation unless the parties so intend. It is indispensable to marriage, whether under the statute or at com- mon law, that the parties consent to be husband and wife presently, and though cohabitation following an engagement is evidence of such consent, it is not conclusive, but or\\y prima facie evidence of it, and as such open to rebuttal by counter proof. 1 Bishop on Marriage and Divorce, sees 253, 254; Forbes v. Countess of Strath- more, Ferg. 113; The Queen v. Jf litis, 10 CI. & Fin. 534, 782; Robert- son v. The State, 42 Ala. 509; Port v. Port, 70 111. 484. See, also, Cheney v. Arnold., 15 N. Y. 345; Duncan v. Duncan, 10 Ohio St. 181, and Mr. Bishop's criticisms on them in 1 Bishop on Marriage and Divorce, sees. 255-258. In the case at bar, we think the evidence shows that the parties after their engagement were all along looking forward to a formal ceremony to make them husband and wife, and never agreed or consented to become such without it. 1 1 " Confessions and cohabitation would be competent evidence alone of a mar- riage in most civil actions. It is competent as evidence in all, but not sufficient in prosecutions for bigamy, actions for criminal conversation and other cases, in which a marriage in fact must be proved." — Allen, J., in Hayes v. People, 25 N. Y. 390, 396. "The reason is that while ordinarily such evidence is sufficient because the law places that interpretation upon ambiguous acts which favors innocence, and will not assume that cohabitation is illicit if, by presuming mar- riage, it would be lawful, yet in a prosecution for adultery this presumption conflicts with the presumed innocence of the prisoner of the crime of which he is charged, and, therefore, such evidence in such cases cannot alone establish a marriage. The essentials of a valid marriage are in all cases the same, the dis- tinction being in the mode of proof alone." — Irvine, C, in Bailey v. State, 36 Neb. 808, 812. NON-AGE OF A PARTY. 37 Non-age of a Party. KOONCE v. WALLACE. 7 Jones Law (N. C), 194.— 1859. This was a motion to grant letters of administration on the estate of James G. Wallace, deceased, made before the Supreme Court of Onslow, at its last spring session, Shepherd, J., presiding. The facts of the case are as follows: In February, 1858, James G. Wallace, being then under twenty-one years of age, but over sixteen, was married to Caroline Tilghman, then under fourteen years. She became fourteen in June, 1858, and lived with Wallace as his wife, until September 23d, 1858, when he died, being still under twenty- one. The parties lived together as man and wife, and strictly recog- nized each other as such, from the marriage in February, 1858, until the death' of the husband in September of the same year. At De- cember Term of Onslow County Court, Caroline Wallace, widow of James Wallace, applied for letters of administration on his estate, when the defendant in this case, the mother of the intestate, and also his highest creditor, opposed the motion, alleging that no mar- riage had taken place between her son and the applicant, inasmuch as the applicant was under fourteen years of age when married. The County Court granted the letters of administration to the applicant, and from this judgment there was an appeal to the Superior Court, when the applicant, Caroline, relinquished to Francis D. Koonce, her right to administer, and that court accordingly granted him letters of administration; and from this judgment defendant appeals to this court. Pearson, C. J. It is enacted, Rev. Code, c. 69, sec. 14," Females under the age of fourteen, and males under the age of sixteen years, shall be incapable of contracting marriage." A marriage is duly solemnized in all respects save that the female is a few months under the age of fourteen; the parties lived together as man and wife, until she arrives at that age, and afterwards con- tinue so to live together until the death of the other party. The question is upon the construction of this statute, was the mar- riage void, i. e., a mere nullity, or was it voidable. /. e., imperfect, but capable of being confirmed and made perfect by subsequent con- sent and cohabitation as man and wife ? At common law, fourteen in males and twelve in females was the age of consent, and if one or both of the parties, at the date of the celebration of the marriage, were under the requisite age, such mar- 38 CONTRACT OF MARRIAGE. riage was imperfect, by reason of the fact that the parties were incapable of contracting marriage, but it became perfect and was confirmed if the parties, after attaining the requisite age, assented to it by continuing to cohabit together as man and wife. In other words, the marriage was not void, but was only imperfect or void- able for the want of capacity, but could be made perfect or be con- firmed by the consent of the parties, implied from subsequent cohabi- tation as man and wife; on the same principle by which it was held that the contract of one under the age of twenty-one, in respect to property, except for necessaries, and although imperfect and void- able because of a supposed want of capacity, may be confirmed and made perfect by assent, after attaining the age of twenty-one. Indeed, the application of this principle, is especially called for in regard to the contract of marriage from its peculiar nature and con- sequences. Coke Lit. 33a; ibid, 79a; Note 43; 1 Bl. Com. 436. Such was the settled rule of law in regard to incapacity to contract, for the want of age, previous to the statutory enactment above recited; and in the opinion of this court, the only effect of the stat- ute, was to make sixteen instead of fourteen years in respect to males, and fourteen instead of twelve years in respect to females, the ages at which the parties, respectively, were capable of making a per- fect marriage, leaving the rule of the common law unaltered in all other respects; for, as is said by Bishop in his treatise on " Marriage and Divorce," sec. 192: "The common-law rule of fourteen in males and twelve in females, as the age of consent, was derived from the civil and canon law. It originated in the warm climate of Italy, and it has been thought not entirely suited to more northern latitudes. In some of the United States it has been altered by stat- ute, and the age of consent fixed at later periods of life." This construction of the statute is supported by " the reason of the thing," for no ground of public policy can be conceived of mak- ing it expedient to deprive the parties of the common-law right to confirm by subsequent consent and cohabitation as man and wife, a marriage solemnized in due form of law, although imperfect, because both or one of the parties were incapable, for want of age, of mak- ing a perfect marriage, whereby, notwithstanding such confirmation by assent and cohabitation, they should be subjected to indictment for living together in fornication, and their issue should be deemed bastards. And, as we conceive, the correctness of this construction is put beyond the reach of doubt or question, by a comparison with other sections of the same statute, to wit, — section 9, "all mar- riages contracted after," etc., " between persons nearer of kin than first cousins, shall be void; " section 7 — " all marriages since," etc., NON-AGE OF A PARTY. 39 " between a white person and a free negro, or free person of color to the third generation, shall be void," sec. 8. — " No minister of the gospel or justice of the peace shall marry a white person with an Indian, negro or free person of color to the third generation, know- ing them to be so, upon pain of forfeiting," etc. Thus in the stat- ute, some marriages are made void, and, in respect to others, it is enacted, that the parties shall be incapable of contracting marriages. Why this change of expression, if the same idea was intended to be expressed ? Taking into consideration the law as it was before set- tled, there is no rule of construction which would justify the court in giving the same meaning and effect to modes of expression so different, and such a construction would shock common sense. On the argument, Gathings v. Williams, 5 Ired. Rep. 487, was cited, and the counsel relied on this passage in the opinion: " Where the marriage is between persons, one of whom has no capa- city to contract marriage at all, as where there is a want of age or understanding, or a prior marriage still subsisting, the marriage is void absolutely, and from the beginning." In that case there was a prior marriage still subsisting, and the point presented was the effect of a second marriage, so what dropped from the court in regard to a want of age or understanding was an obiter dictum. There is a marked distinction. It may well be, that a second marriage, while the first is still subsisting, is void and inca- pable of confirmation, because it is so utterly denounced by the law, as to subject the party marrying a second time, to capital punish- ment as a felon, but a mere want of age or understanding rests on a different footing entirely. Crump v. Morgan, 3 Ired. Eq. 91, was also cited. That was a case where the marriage was duly solem- nized but the woman was a lunatic at the time, and at no time after- wards was in the possession of her faculties, " so as to be capable of judging of her rights or interests or of making or confirming a contract." So the very learned disquisition on the question, whether if she had been restored to sound mind, the marriage of such an one as could have been confirmed by her subsequent assent and cohabitation, was extra judicial, and in regard to it " the doc- tors differ," for Bishop in his learned treatise, sees. 188, 189, 190, inclines to the opinion in his comments on that case, that such a marriage could be confirmed, and calls attention to the fact that the passage in " Poynter on Marriage," relied on in Crump v. Morgan, was misapprehended, for the author had reference to marriages void for the want of due solemnity, as where the party officiating was not a minister of the gospel, or where there was the impediment of a former pre-existing marriage, and he establishes by the authority 40 CONTRACT OF MARRIAGE. cited, sees. 122 and 123, that marriages under fraud, terror or duress, though generally spoken of in the books as void, are in effect, only voidable, and may be confirmed by subsequent consent and voluntary cohabitation as man and wife. However this may be, we think it clear, that the statute under consideration, does not abrogate the principle of the common law in respect to marriages where both of the parties, or one of them, are under the age of con- sent; and, although the marriage is imperfect for the want of capa- city, it may be confirmed, and the effect of the statute is only to change the age of consent so as to make it conform to our more northern latitude. There is no error. Per Curiam. Judgment affirmed. Munson, J., IN FISHER v. BERNARD. 65 Vt. 664, 666. — 1893. The petitioner seeks an annulment of the marriage of his daughter, contracted when she was thirteen years of age, on the ground that she was then within the period of disability. R. L. 2,349 provides for the annulment of a marriage when either party had not, at the time of the marriage, attained " the age of legal consent." By No. 63, Acts of 1886, the age under which a female person was held inca- pable of consenting to unlawful carnal knowledge was raised to four- teen years, and the petitioner contends that this alteration effects an extension of the period within which a female child is disabled from contracting marriage. From 1 791 to 1886 the age of consent as regards unlawful carnal knowledge was fixed by statute at eleven years. At common law males under fourteen and females under twelve were incapable of contracting a binding marriage. * * * It may be true that the phrase " age of legal consent " is sometimes applied to age of con- sent established by the statute relating to unlawful carnal knowl- edge; but we find nothing to indicate that the Legislature used it with reference to that limit in providing for a sentence of nullity, or supposed that in raising the age of consent by the act of 1886 it was effecting a like change in the age of capacity to contract marriage. There is certainly no difficulty in believing that the Legislature intended by the latter statute to guard a female child from unlawful carnal knowledge for a time after she was capable of contracting a binding marriage. We hold that the period of disability to contract marriage is that of the common law. MENTAL INCAPACITY OF A PARTY. 41 Mental Incapacity of a Party. POWELL v. POWELL. 18 Kan. 371. — 1877. Error from Neosho District Court. Horton, C. J. An action was commenced in January, 1875, in the District Court of Neosho county, by Margaret Powell to obtain a divorce from James L. Powell. The causes alleged in the petition were the impotency of the defendant, and extreme cruelty on his part toward the plaintiff. The petition also stated that the defend- ant was at the time of the marriage, and at the time that the plain- tiff contracted to marry the defendant, afflicted with insanity, which then and long after the marriage was wholly unknown to the plain- tiff; that the defendant had continued insane from the time of the marriage to the commencement of the action, and that his insanity had continually grown worse; that on or about June nth, 1872, he was committed to the insane asylum at Osawatomie, and had since that time been confined in the asylum. Service of the summons was made on the guardian of the defendant in pursuance of sec. 36 of chapter 60, Gen. Stat. 557. No answer was filed, and no proof offered, the court entered a decree of divorce releasing the parties from the obligations of the marriage, giving the custody of the chil- dren born in wedlock to the plaintiff, and adjudging that the plain- tiff should have, enjoy, and possess as alimony, certain real estate with the right to sell the same at her pleasure. Eleven months afterwards, a motion was made by James L. Powell, by his counsel, John C. Carpenter, Esq., to vacate and set aside the judgment, as wholly void, because the petition did not state facts sufficient to con- stitute a cause of action. On 29th December, 1875, the court sus- tained the motion, and ordered an entry to be made that the judg- ment should be set aside as void, and held for naught. To this action of the court the plaintiff excepted and asks that it be reversed. Under the allegations in the petition, we must assume that the de- fendant was insane at the time of the alleged acts of cruelty, and, as a sequence, was mentally incapable of knowing what he did. Under such circumstances, on very familiar principles, he could not be held responsible for his acts, and we do not think the acts thus com- mitted a sufficient cause for divorce. As insanity itself, after marriage, is no cause for a divorce, nothing which is a consequence of it can be. The counsel for plaintiff do not dispute this con- 42 CONTRACT OF MARRIAGE. elusion, but insist that the petition should be so construed that the defendant had lucid intervals, and that thereupon, proof was introduced that the defendant was sane at the commission of the acts complained of. Unfortunately for this theory, there is no room for this construction. The allegations in the petitions are broad and sweeping. It is asserted " that the defendant was at the time of the marriage, and has continued to be and still remains insane, and that his insanity has continually grown worse." The extreme cruelty alleged, occurred June ist, 1872, and ten days after- ward the defendant was taken to the insane asylum. If the de- fendant had lucid intervals, and committed any act for which he was responsible during such time, upon which a decree of divorce could be based, the petition should have so stated. In the absence of any such allegation, we cannot presume, against the averment to the contrary, that the defendant was sane at the commission of the alleged acts of cruelty. The petition excludes the idea. Counsel for plaintiff admit that the statements concerning impo- tency set forth in the petition are insufficient, and should be treated as surplusage ; hence, we need only say, as to that alleged cause for divorce, that our statute in that regard is to be interpreted in har- mony with the common law; and when the Legislature enacted that a divorce might be granted for impotency, it was intended that the impotence must have existed at the time of the marriage. If a per- son should become impotent after marriage, the marriage is good, and no ground of divorce exists therefor. Such is the universal doctrine. The only serious question in this case is, the effect of the aver- ments of the insanity of the defendant at the time plaintiff con- tracted to marry him, his insanity at the date of such marriage, and the continuance of such insanity. The marriage of an in- sane person is absolutely void, by reason of the want of capac- ity of such a party to contract; and in this case, if the allegations in the petition are true, the marriage of the plaintiff and defend- ant was null and void, and has never since obtained any validity, because the defendant has never been in any mental condition to ratify or consummate it. Not only was there no marriage de jure, but it would also be a misnomer to call it a marriage de facto, although law writers thus frequently designate it. It was a nullity, and the plaintiff is in no way bound to defendant by any marriage relation. The concurring assent of the two minds was wanting. The plaintiff is as free from the defendant as if the court below had pronounced the decree of nullity, as no judgment was necessary to restore the parties to their original rights. The fitness and pro- MENTAL INCAPACITY OF A PARTY. 43 priety of a judicial decision pronouncing the nullity of such mar- riage, is supported, because conducive to good order and decorum, and to the peace and conscience of the party seeking it. Weight- man v. Weightman, 4 Johns. Ch. 343; Rawdon v. Rawdon, 28 Ala. 565. Another reason why a judicial determination of such a mar- riage ought to be sanctioned, is, that an opportunity should be given, when the evidence is obtainable, and the parties living, to have the proof of such marriage being void preserved in the form of a judicial record, so that it cannot be disputed or denied. But in the case at bar, the cause was prosecuted, tried, and decided, as a " divorce suit " under the provisions of the code. This is more apparent when we fully examine the record. Permission was obtained to amend the petition, and two statutory causes for which divorces are granted were inserted; the maiden name of the plain- tiff was omitted; the petition was verified; the children's names were set forth, with the surname of the defendant; the real estate of the defendant was specifically described, and in the prayer for relief the court was asked to grant a divorce, to divide the real estate, to give $3,000 as alimony, and to award the custody of the children to plaintiff. The court, in rendering judgment, granted all the relief prayed for, but instead of dividing the real estate, decreed all of it as alimony to the plaintiff who had assumed and retained the name of the defendant. Under the particular circumstances of this case, we cannot construe the action as one prosecuted to have a void marriage pronounced a nullity, and that therefore the action of the court below, in vacating and setting aside the judgment for being void, was not erroneous. It is immaterial whether the defendant, or his attorney, had the right to appear and make such motion or not. If the judgment was void, no injury resulted to the plaintiff from the order of the court; and holding the judgment void, we cannot interfere with the action of the District Court. If the judgment in this case could be con- strued as a decree annulling a void marriage, so much of the judg- ment as awards alimony to the plaintiff would be nugatory. We view the case as the court below considered it, and treat it as that court treated it, simply as an action for divorce and alimony, under the provisions of the code. Any other construction by us would be grossly unjust to all the parties to the proceeding, and especially so to the plaintiff. It is doubtful whether the plaintiff would be will- ing to accept the original judgment attempted to be rendered, if she was fully acquainted with the consequences which would result if we were to hold the judgment valid so far as determining the marriage void ab initio by reason of the insanity of the defendant. A sentence 44 CONTRACT OF MARRIAGE. of nullity like this would strip her of all alimony, deprive her of all interest in the property of defendant, and bastardize her children. We make these last remarks more freely, because the counsel for the plaintiff in this court state in their brief " that they first became connected with the case after the filing of a motion to vacate the judgment, and hence are not responsible for the pleadings." If, upon full consideration, the plaintiff still wishes to end the mesalliance between herself and the defendant' by a sentence of nullity declaring void the marriage for want of sufficient mental capacity of the defendant, with consent of the court below, she can amend her petition, and prosecute the suit to final judgment, or she may disregard the proceedings had and commence de novo. Sec. 648 of the Code (Gen. Stat. p. 759), does not in any manner restrict the plaintiff from prosecuting or instituting her action to annul a void marriage. Said section applies only to incapables, who are unable to contract marriage from want of age or understanding. Independently of the provisions relating to divorce, the District Court has full jurisdiction to afford the plaintiff requisite relief. If she wishes no judicial determination of the question, and the defend- ant was insane at the time of the marriage, and has had no lucid intervals since, she may treat such marriage as wholly void. So it is not correct, as the counsel for plaintiff suggest in their brief, that if this judgment is not upheld the unfortunate plaintiff has no relief. The order of the District Court in vacating the said judgment will be affirmed. All the judges concurring. LEWIS v. LEWIS. 44 Minn. 124. — 1890. Appeal by plaintiff from a judgment of the District Court for Hennepin county, where the action (brought to annul the marriage of the parties) was tried by Lochren, J. Vanderburgh, J. The statute in relation to divorces (Gen. Stat. 1878, c. 62, sec. 2), provides that " when either of the parties * * * for want of age or understanding, is incapable of assenting thereto, * * * . the marriage shall be void from the time its nullity is declared by a court of competent authority." Certain limitations are imposed by sees. 4 and 5, as follows: " Nor shall the marriage of any insane person be adjudged void after his restoration to reason if it appears that the parties freely cohabited together as MENTAL INCAPACITY OF A PARTY. 45 husband and wife after such insane person was restored to a sound mind." "Sec. 5. No marriage shall be adjudged a nullity at the suit of a party capable of contracting, on the ground that the other party was * * * insane, if such * * * insanity was known to the party capable of contracting, at the time of such marriage." There are no other provisions on the subject of insanity, and no form of insanity or insane delusion is included in the list of causes for divorce ; and insanity arising subsequent to the marriage affords no ground for divorce. The section first quoted is simply declara- tory of the common law. There must have been, at the time of the marriage, such want of understanding as to render the party inca- pable of assenting to the contract of marriage. The plaintiff applies for a decree of nullity on the ground of his wife's insanity at the time of his marriage, of which he claims to have then had no knowl- edge. The particular form of insanity alleged was a morbid propen- sity on the part of the wife to steal, commonly denominated " klep- tomania." It was not proved, nor is it found by the court, that she was not otherwise sane, or that her mind was so affected by this peculiar propensity as to be incapable of understanding or assenting to the marriage contract. Whether the subjection of the will to some vice or uncontrollable impulse, appetite, passion, or propen- sity be attributed to disease, and be considered a species of insanity, or not, yet as long as the understanding and reason remain so far unaffected and unclouded that the afflicted person is cognizant of the nature and obligation of a contract entered into by him or her with another, the case is not one authorizing a decree avoiding the contract. Any other rule would open the door to great abuses. Anon., 4 Pick. 32; St. George v. Biddeford, 76 Me. 593; Durham v. Durham, 10 Prob. Div. 80. For a discussion upon the characteris- tics of the peculiar infirmity to which the defendant here is alleged to be subject, see 1 Whart. & S. Med. Jur. (4th ed.), sees. 591, 595. The cases are numerous in which contracts and wills have been upheld by the courts, though the party executing the same is subject to some peculiar form of insanity, so called, or is laboring under certain insane delusions. /;/ re Blakety 's Will, 48 Wis. 294 (4 X. W. Re P- 337); Jenkins v. Morris, 14 Ch. D. 674; 11 Am. & Eng. Enc. Law, in, and cases. The defendant is found to have been subject to this infirmity at the time of her marriage with plaintiff, in 1882, but it was concealed and kept secret from the plaintiff by her ami her relatives, and was not discovered by him until 1888. As before suggested, if it had developed after the marriage, the plaintiff would not have been en- titled to judicial relief, though the consequences might have been 46 CONTRACT OF MARRIAGE. equally serious to him. But the plaintiff contends that such con- cealment constituted a case of fraud, such that the court should declare the contract of marriage void on that ground. Where one is induced, by deception or strategem, to marry a person who is under legal disability, physical or mental, the fraud is an additional reason why the unlawful contract should be annulled. And so deception as to the identity of a person, artful practices and devices used to entrap young, inexperienced, or feeble-minded persons into the mar- riage contract, especially when employed or resorted to by those occupying confidential relations to them, and where the contract is not subsequently ratified, are proper cases for consideration of the court. But, generally speaking, concealment or deception by one of the parties in respect to traits or defects of character, habits, temper, reputation, bodily health, and the like, is not sufficient ground for avoiding a marriage. The parties must take the burden of informing themselves, by acquaintance and satisfactory inquiry, before entering into a contract of the first importance to themselves and to society in general. Reynolds v. Reynolds, 3 Allen, 605 ; Lcavitt v . Leavitt, 13 Mich. 452; 1 Cooley Bl. 439, and notes. The facts found do not present a case warranting the relief asked. Judgment affirmed. Physical Incapacity of a Party. POWELL v. POWELL. 18 Kan. 371. — 1877. [Reported herein at p. 41.] Consaug7iiuity of Parties. SUTTON v. WARREN. 10 Met. (Mass.) 451. — 1845. Assumpsit on a promissory note for $1,300, given by the defend- ant Ann Sutton, on the 10th of August, 1840. The case was sub- mitted to the court upon the following facts agreed on by the parties: The note declared on was given for money lent by Ann Sutton to the defendant. The plaintiff and said Ann Sutton are natives of England, and were married at Duffield, in England, on the 28th of 'See, also, G v. G , 33 Md. 401. CONSANGUINITY OF PARTIES. 47 November, 1834. About one year after their marriage, they came to this country, where they have lived, as husband and wife, ever since. The said Ann was the own sister of the mother of the said Samuel Sutton, the plaintiff, and has always since said marriage gone by the name of Ann Sutton. Her former name was Ann Hills. Hubbard, J. It is a well settled principle in our law, that mar- riages celebrated in other States or countries, if valid by the law of the country where they are celebrated, are of binding obligation within this Commonwealth, although the same might, by force of our laws, be held invalid, if contracted here. This principle has been adopted, as best calculated to protect the highest welfare, of the community in the preservation of the purity and happiness of the most important domestic relations in life. Greenwood v. Curtis, 6 Mass. 378; Medway v. Needham, 16 Mass. 157; West Cambridge v. Lexington, 1 Pick. 506; Compton v. Bear croft, Bui. X. P. 114; Scrim- shire v. Serimshire, and Middleton v. Janverin, 2 Haggard, 395, 437. There is an exception, however, to this principle, in those cases where the marriage is considered as incestuous by the law of Chris- tianity, and as against natural law. And these exceptions relate to marriages in the direct lineal line of consanguinity, and to those contracted between brothers and sisters; and the exceptions rest on the ground, that such marriages are against the laws of God, are immoral, and destructive of the purity and happiness of domestic life. But I am not aware that these exceptions, by any general con- sent among writers upon natural law, have been extended further, or embraced other cases prohibited by the Levitical law. This sub- ject has been carefully discussed by Chancellor Kent, in the case of Wightman v. Wightman, 4 Johns. Ch. 343; and while he is clear as to the exceptions before stated, he thinks, beyond them there is a diversity of opinion among commentators. 2 Kent Com. Lect. 26. See also Story's Conflict of Laws, sees. 113, 114. There is also a provision in our statute, making marriages void in this State, where persons resident in the State, whose marriage, if solemnized here, would be void, in order to evade our law, and with the intention of returning to reside here again, go into another State or country and there have their marriage solemnized. Rev. Sts. ch. 75, sec. 6. The only object of this provision is, as stated by the commissioners in their report, to enforce the observance of our own laws upon our own citizens, and not to suffer them to violate regulations founded in a just regard to good morals and sound policy. As to the wisdom of this provision it is unnecessary here to speak. But the provision is notice to show that it has not been overlooked in the consideration of the case at bar, which presents no such state of facts. 48 CONTRACT OF MARRIAGE. In view of the whole matter, considering it as a part of the jus gentium, we do not feel called upon to extend the exceptions further. By our statutes, the marriage contracted between Samuel Sutton, the plaintiff, and Ann Hills, his mother's sister, if celebrated in this State, would have been absolutely void. But by the law of England, this marriage, at the time it was contracted, viz., in November, 1834, was voidable only, and could not be avoided until a sentence of nullity could be obtained in the spiritual court, in a suit instituted for that purpose. See Poynter on Marriage and Divorce, 86, 120; 2 Ste- phen's Com. 280. In The Queen v. IiiJiabitaiits of Wye, 7 Adolph. & Ellis, 771, and 3 Nev. & P. 13, the Court of Kings Bench affirmed the doctrine, and held such a marriage voidable only, and that, till avoided, it was valid for all civil purposes. Rose. Crim. Ev. (2d ed.), 286. Since this marriage was contracted, the St. of 6 Wm. 4, c. 54, has been passed, making such marriages which should after- wards be celebrated, absolutely void. In the present case, the mar- riage of these parties was not void by the laws of England, though voidable in the spiritual courts. It never was avoided, and though absolutely prohibited by our laws, yet not being within the excep- tion, as against natural law, we do not feel warranted in saying the parties are not husband and wife. The plaintiff, Samuel Sut- ton, sues on a promissory note given to the said Ann Sutton, and, as her husband, he can maintain an action thereon, in his own name alone, there being no other cause of objection raised than the one stated in regard to the legality of their marriage. Bayley on Bills (2d Amer. ed.), 42; Clancy, Husb. and Wife, 4. Judgment for the plaintiff Prior Marriage of a Party. COLLINS v. VOORHEES. 47 N. J. Eq. 315.— jSqo. On appeal from a decree advised by Vice-Chancellor Van Fleet. Garrison, J., dissenting. The attitude of dissenting from the otherwise unanimous opinion of the court, upon so grave a subject as the law of marriage, is so distasteful that I have expended far more effort in endeavoring to concur than I have in the formulation of these views, which, after all, I find myself constrained to hold. The question to be determined upon this appeal is the legitimacy of the children of Abraham and Caroline Voorhees, and that, in PRIOR MARRIAGE OF PARTY. 49 turn, depends upon whether the relation of marriage existed between their parents. The claim of these appellants is, that their father and mother were publicly married, and that they afterwards lived together as hus- band and wife, and were universally and always so reputed. The respondent, on the contrary, asserts that the ceremonial marriage was void, and that, therefore, no presumption of marriage can be drawn from the subsequent matrimonial conduct and reputation of the parties thereto. The Court of Chancery adopted this latter view, and declared against the legitimacy of the appellants. The facts are not in dispute. Abraham Voorhees was married to a wife in New Jersey, and had by her one child, a son. After a time Voorhees separated from his wife, taking up his residence in the city of New York, while she remained in this state. Shortly after this separation, Voorhees brought a suit against his wife for divorce in the Superior Court of Connecticut. Notice of the pend- ency of this suit was mailed to the defendant, addressed to the hus- band's residence in New York, and, consequently, she did not receive it. A month later a decree of divorce was pronounced. Within a short time Voorhees proposed marriage to a lady who re- sided in West Newton, Massachusetts, to whom, as evidence of his capacity to contract a lawful marriage, he produced a certified copy of the record of the decree rendered in the court of Connecticut. A marriage was thereupon consented to, and was solemnized by a public church wedding in the presence of a large congregation of the friends and acquaintances of the parties. Two months later the divorced wife learned, for the first time, of the Connecticut suit, and thereupon made an application to that court which resulted in the opening of the decree of divorce, the filing of a cross bill against her husband, the annulling of the first decree and the granting of an absolute divorce to the wife upon her cross suit. Of these proceed- ings Caroline, who was residing with Voorhees in West Newton, was kept in entire ignorance, and down to the time of his death, which occurred some years later, was openly and unequivocally acknowl- edged and reputed to be his wife. Two children were the result of this union, both born after the second decree of divorce. Abraham Voorhees died in 1882. The father of Abraham was John F. Voor- hees. He, by his last will, had given his residuary estate equally to all his children, the children of the deceased child to take the par- ent's share. The present contest has arisen upon the filing of a bill in the Court of Chancery of New Jersey by the son of Abraham by his first marriage, the prayer of which is, that that portion of the grandfather's estate which would have come to the said Abraham [Domestic Relations — 4.] 50 CONTRACT OF MARRIAGE. Voorhees, if living, be paid over to the complainant as the only- lawful child of the said Abraham. From this statement it is evident that the sole question is whether, upon the facts stated, the law raises, in favor of the legitimacy of the appellants, a presumption of marriage between Caroline and Abra- ham from and after the time when he became capable of lawfully contracting marriage. The Court of Chancery answered this ques- tion in the negative. That decision this court now affirms, for the reason given by the court below. The principle of law propounded by the learned judge who heard the case is, that "where actual marriage is shown, whether legal or illegal, the subsequent cohabitation of the parties and their reputa- tion as husband and wife must necessarily be understood as having had their origin in such marriage, and cannot be treated as presump- tive evidence of a second marriage at a later date." The clearness of the language here employed, and the line of rea- soning pursued permits no doubt as to the precise meaning and force ascribed to presumptions of marriage. The reasoning is this: Marriage may be entered into by mutual consent — that consent will be presumed from conduct and repute in cases where actual consent has not been shown — where an actual contract is shown the parties cannot in fact be supposed to have consented a second time, hence their conduct gives rise to no presumption of marriage. In fine, there can be no presumption of marriage where consent is not a logical inference from the facts proved; and where matrimonial cohabitation commenced by consent it is illogical to refer its con- tinuance to a subsequent consent. The fallacy of this argument is, that it assumes that the rule by which the law, from matrimonial conduct, presumes matrimonial consent, is a canon of evidence having for its object the ascertain- ment of whether in point of fact consent was interchanged, and, if so, at what period of time; whereas, it is easily demonstrable that the doctrine in question is founded on public policy and is uniformly applied upon principles other than those which regulate the laws of proof or prescribe the form of the syllogism. The narrow rule promulgated by the court appears to me to be subversive of this important principle of public law, and to be out of harmony with the entire weight of authority upon this subject. A somewhat similar view of the law was, it is true, at one time supposed to receive support from the cases of Cunningham v. Cun- ningham, decided in Lord Eldon's time, and Lapsleyv. Gricrson, which was before Lord Cottenham in 1848. The proposition, which these cases were thought to hold was, that if parties, either because of PRIOR MARRIAGE OF PARTY. 5 1 legal impediments or from mere wantonness, entered upon a course of illicit cohabitation, their subsequent matrimonial conduct, with its resulting reputation, would, as matter of law, be so colored by its original meretriciousness that no matrimonial consent could be pre- sumed. In 1867 the case of Campbell v. Campbell was before the House of Lords upon this precise point, and it was the opinion of every judge that the doctrine above stated received no support what- soever from either of the cases cited or from any case, while the doctrine itself was distinctly and emphatically repudiated. This case (Campbell v. Campbell), often spoken of as " The Breadalbane Case," has, since its decision, been universally accepted as the lead- ing authority upon the doctrine of the presumption of marriage. The facts of the case are these: James Campbell had eloped with a young wife of a middle-aged grocer named Ludlow. They fled to Canada, where they lived in connubial constancy and repute until after the death of Ludlow, of which, however, there was no proof that either of them ever heard. They returned to England, and, after the birth of a son, settled in Scotland, where they passed them- selves off uniformly, unequivocally and constantly as man and wife. The case came before the courts, and ultimately before the House of Lords, upon the claim of the grandson to the estates of Breadal- bane in the right of his father. The claimant's father was born in England after the return of his parents from Canada, and after the death of Ludlow, the first husband of his mother. The case turned, therefore, upon the question of the legitimacy of the claimant's father, and that depended upon whether his parents were lawfully intermarried. The chief contention pressed, as matter of law, against the presumption of marriage was, that the original coming together of the parties having been meretricious, their subsequent conduct must be referred to that illicit relationship, and could not, in law, raise the presumption that the parties had contracted a subsequent marriage. In his opinion to the House of Lords upon this point, Lord Westbury said: "The appellant objects that the cohabita- tion, which began when the parties were incapable of contracting marriage, and which was continued without change, is ineffectual to form the basis of the conclusion that consent to marry was inter- changed after the impediment to marriage had been removed. That would be a very important rule if it were proved to be well founded; but I am unable to find any principle to justify the introduction of such a rule, and what is more material to the purpose, I am unable to find any case or any book of authority in which that principle has been either followed out into a decision or has been laid down as a rule of Scotch law. It appears to be almost entirely derived by the 52 CONTRACT OF MARRIAGE. appellant from what I conceive to be a misapprehension of certain words found in the judgments delivered in Cunningham v. Cunning- ham and Lapsley v. Gr/erson, or rather (if I may venture to say so), from misapprehension of part of a marginal note to one of those cases. There is nothing (in those cases) to warrant the proposition that the subsequent conduct of the parties shall be rendered ineffec- tual to prove marriage by reason of the existence at a previous period of some bar to the interchange of consent. It would be very unfortunate if it were so. There is no foundation for the argument, that the matrimonial consent must, of necessity, be referred to the commencement of the cohabitation, nor any warrant for the appel- lant's ingenious argument, that as the consent interchanged must be referred to some particular point — which he insisted was at the commencement of the cohabitation, and therefore insufficient — the cohabitation which continued afterwards without interruption would warrant no other conclusion than that which would be warranted by the consent interchanged at a time when it was insufficient. I should undoubtedly oppose to that another and, I think, a sounder rule and principle of law, namely, that you must infer consent to have been given at the first moment when you find the parties able to enter into the contract." To the same effect were the opinions delivered by Lord Chelms- ford, lord chancellor, and Lord Cranworth. The Breadalbane Cue was decided in 1867. L. R. 1 H. L. Cas. 182. At a later period, in 1876, the House of Lords was called upon, in the case of DeThoren v. The Attorney-General, to deal with a set of facts in all respects the exact counterpart of the case which is now before this court. The case is reported in 1 App. Cas. L. R. 686. The point before the court in that case is thus stated by Lord Chelmsford: 'The question," he says, "to be determined is, whether there was a consent to a marriage between William Ellis Wall and Sarah Ogg, evinced by habit and repute, prior to the birth of the elder of their sons. If there were no other question than this in the case, there would be no difficulty in giving an answer in the affirmative. But the appellant, although he admits that there had been such cohabitation of the parties as husband and wife as in ordinary cases would have conclusively established the presumption of a marriage by consent, yet contends that the circumstance of a previous ceremony of marriage having taken place between the par- ties, which was invalid, though unknown to them to be so, prevented that presumption. The ground of this argument is, that the living together of the parties as husband and wife must be attributed to PRIOR MARRIAGE OF PARTY. 53 the invalid ceremony, and, therefore, that the habit and repute could not be evidence of any other consent." The invalidity of the ceremonial marriage alluded to was, that the husband was not, at the time of his second marriage, lawfully divorced from his first wife, and although he became a divorced man shortly afterwards, neither he nor his second wife appear to have known of the removal of the impediment. It is evident that every question raised by the case in hand was presented also upon the facts of that case. By the unanimous judgment of the House of Lords it was decided: i. That the subsequent cohabitation and reputation were not to be referred to the inefficient ceremony, even though the parties did not know of the removal of the impediment to their original marriage. 2. Where parties are cohabiting matrimonially but unlawfully, be- cause of impediment in their marriage, matrimonial consent must be presumed to have been interchanged as soon as the parties were en- abled, by the removal of the impediment, to enter into the contract. 3. The ceremony, although invalid, was a consent by the parties to a cohabitation which was matrimonial in character, and their subsequent cohabitation was proof of a continuing consent thereto. To the principles thus announced I give an unqualified assent. It is especially material to the matter in hand to note that in every opinion delivered the doctrine of presumption of consent is treated as a principle having its root in public policy. At no time was it regarded as a rule of evidence for determining whether the parties had interchanged consent. Such a consideration is evidently out of place, for the reason that the whole fabric of the doctrine rests upon the necessity of presuming something which is not proven, and that something is consent, and consent at a time favorable to the end which the rule of public policy has in view. That end is the uniform reference of matrimonial conduct to the status of marriage, for it is with the status of marriage society is chiefly concerned. The con- tract is made by the parties without consulting society; the status is imposed by society without consulting the parties. The contract may be actual and ceremonial, or actual and non-ceremonial, or it may be neither actual nor ceremonial, but simply presumed from the policy of the law. That policy is, as I have said, that all matrimo- nial conduct shall, if possible, be referred to a matrimonial status. Where the marriage is actual the status at once arises, in order that connubial conduct and repute may be under its sanction; and where the conduct and repute are matrimonial, consent is presumed in order that the status may at once arise. If, at the time of the com- mencement of matrimonial conduct and reputation, there is impedi- 54 CONTRACT OF MARRIAGE. ment to the application of this doctrine, the rule of public policy is not thereby defeated; it remains in abeyance, to be imposed at the first moment when conduct and capacity shall so co-exist as to ren- der it possible. If an actual marriage has been solemnized, that circumstance, so far from frustrating the policy of the law, affords the strongest possible case for its application; for where the charac- ter of the consent is not in question, but simply its legality, the status of marriage should arise at the earliest moment when the par- ties are enabled lawfully to do that which they had theretofore in- effectually attempted. From the broad principle thus laid down we turn to the decision of the. case in hand, the doctrine of which is, that consent cannot be presumed from matrimonial conduct and reputation in any case in which the parties have actually celebrated a marriage to which, in their own minds, they referred their conduct. In support of this proposition two cases are cited in the opinion adopted by this court — O'Gara v. Eisenlohr, 38 N. Y. 296, and Cartwright v. Mc- Goiu/f, 121 111. 388. No such doctrine is laid down by these cases, nor do the facts of either case call for or admit of such conclusion. O'Gara v. Eisenlohr was a case in which the original union of the parties was illicit, because the man had a wife living the date of whose death was unknown. The court was asked to raise the pre- sumption that her death had occurred between certain years. The case turned entirely upon the law relative to presumptions of death, and does not touch the doctrine concerning the presumptions of marriage. If it is possible to regard this case as an authority upon the proposition now before us, its weight is entirely against the position of the court below, in that it mentions with approval the cases of Fenton v. Reed, 4 Johns. 52, and Rose v. Clark, 8 Paige, 574, in both of which the doctrine which I am now seeking to enforce is declared in the clearest manner. In Fenton v. Reed the facts were, that after the prolonged absence of her husband the plaintiff married Reed. Subsequently the first husband came back, the plaintiff and Reed continuing, however, to live together as man and wife until and after the death of plaintiff's first husband. The court held that, upon this state of facts, it was a question for the jury whether the circumstance of this cohabita- tion evinced a marriage, other than the actual one, occurring after the death of the first husband. In Rose v. Clark the facts were substantially those of Fenton v. Reed. Chancellor Walworth, in reviewing the cases, says: " It appears from the decisions in our own courts, as well as in England, that a subsequent marriage may be inferred from acts of recogni- PRIOR MARRIAGE OF PARTY. 55 tion, continued matrimonial cohabitation and general reputation, even where the parties originally came together under a void con- tract of marriage." It may, I think, be safely asserted that no case can be found in the New York reports from 1809, when Fenton v. J?eed was decided, down to Gall v. Gall, decided in 1889, in which any different doc- trine has been held or even intimated. The other case relied upon is Carhvright v. McGazan, in which the facts did not raise the question presented by the case before us, but in which, strangely enough, the judge who delivered the opinion of the court imagined, as an illustration, just such a state of facts as that with which we have to deal, and said: " That in such a case the presumption of marriage would apply even though the parties may not have known of the removal of the impediment to their original marriage." The doctrine of the present case derives, therefore, no support from the only cases cited as sustaining it. If any authority for such a doctrine exists elsewhere I have failed to discover it. It stands, as it appears to me, as an innovation upon established law upon a most important branch of jurisprudence, and is radically destructive of the principle of public policy to which I have alluded, the uniform application of which is illustrated, amongst others, by the distin- guished authority to which I have referred. For these reasons I cannot vote to affirm the judgment rendered in the Court of Chancery. For reversal — Garrison (the majority of the court being for affirmance). A motion having been subsequently made for re-argument, the same was refused, the opinion of the court being delivered as fol- lows by Beasley, J. (Reported in 47 X. J. Eq. 556.) Beasley, C. J. This motion is refused, and the record is ordered to be remitted. Inasmuch as it appears that counsel has misconceived the ground on which this case was decided by this court, it seems proper that I should state that ground as it was understood by me. This court was called upon to apply the law to the following facts, viz.: In the year 1867 one Abraham Voorhees brought suit in the Superior Court of Connecticut for divorce against his wife Camilla for desertion. This proceeding was a fraud from beginning to end, on the part of the plaintiff. No notice of it was given to the wife, who at the time was a resident of this state, and, consequently, 56 CONTRACT OF MARRIAGE. according to the decision of this court in the case of Doughty v. Doughty, i Stew. Eq. 581, the decree that ensued was, in this juris- diction, an absolute nullity. This being the situation Voorhees married a second time, and the question to be decided was with respect to the validity of this latter marriage. On that subject this court held, in the first place, that inasmuch as the divorce granted in Connecticut was absolutely void in this State, such second mar- riage had no legal force whatever. This was a necessary conclu- sion, as long as the case just cited remained unreversed. But another question arose. It appeared that after this second marriage the first wife obtained a divorce from her husband, and that subse- quently to that occurrence Voorhees cohabited with his so-called second wife, and treated her before the world as though he were married to her. And it was urged that such cohabitation formed the basis of an inference that there had been an interchange of consent to marriage after the dissolution of the first marriage. This infer- ence was rejected by this court on two grounds: First, that an interchange of consent was not to be deduced from cohabitation accompanied with matrimonial habit and repute, in a case wherein it appeared that the parties had been living together as husband and wife by force of a ceremonious marriage, to which as a valid act one of the parties, in point of fact, had not assented. The court found as a fact in this case that the husband, Voorhees, knew that he had no legal power or right to contract this second marriage; that he was aware that the divorce fraudulently obtained by him was a nullity; what he did consent to was to deceive the so-called second wife and to live with her with the appearance of being married to her; he did not consent to marry her in any legal sense whatever. Under these circumstances, this court decided that his continued cohabitation with this woman, after the obstacle to their marriage had been removed, did not prove that he had changed his original intent, which was to live with her without being legally married to her. It was deemed that cohabitation with habit and repute, being accom- paniments of the original status, could not, per se, be taken as proof that a new status had been agreed to by the parties. Voorhees, as just stated, had consented to an illegitimate connection, attended with the concomitants of habit and repute. The continuance of such concomitants could not, by their unassisted probative force, lead, with any show of reasoning, to the conclusion that the man, when he was at liberty to form a legal connection with the woman, had embraced the opportunity. To treat evidence which was in all respects and to the utmost degree iu accord with the original pur- pose as proving, propria vigorc, a change of such purpose, appeared PRIOR MARRIAGE OF PARTY. 57 to be not only inadmissible according to legal rules, but as being in logic ridiculous. This construction of the evidence, it was believed, stood opposed to but a single case, which is that of Breadalbane, reported in L. R. 2 H. L. Sc. 269. The doctrine of that case is supported by nothing that preceded or that has followed it, and is altogether anomalous, and, as it seems to me, it was properly rejected by this court. In that case the court acted upon the principle, that if a man and woman agreed to live together adulterously, with a simulation of marriage, that there should be an inference of a subsequent valid marriage, from the fact that such simulation had been continued after the death of the husband of the adulteress. Why such an inference is to be thus deduced is not apparent, unless it be for the promotion of adultery. By its prevalence the adulterous purpose is converted into a matrimonial purpose, without a particle of reason- able evidence in support of the alleged change of intention. Such a course is opposed, as ,it seems to me, to morals and public policy. Lord Westbury read the opinion in the case, and he has no better reason to offer in favor of the principle adopted than that he can find no ruling the other way. He does not pretend that he can find anything in its favor, and in his remarks he strangely compares the case before him with those instances where the parties intended originally to marry and not to commit adultery, their intent being frustrated by the existence of some unknown obstacle. And yet it is presumed that no one who will look with any care into the subject will have the slightest doubt that these two classes of cases, with respect to the methods of their proof, respectively rest upon entirely different foundations; for when the parties have intended marriage, being ignorant of an existing impediment, all that is to be estab- lished by cohabitation apparently matrimonial, subsequent to the removal of such impediment, is the carrying into effect by the par- ties of their original purpose; but when the original purpose was to live in adultery, the evidence, under similar circumstances, must be sufficient to show an abandonment of such purpose and the execu- tion of a new one. These lines of cases can be confounded only by want of careful observation of the principles upon which they rest- Nor in the present case would the result have been varied if the rule thus rejected had been adopted, for the evidence before the court, reasonably construed, would have been deemed to be opposed to the contention of the appellants. The proofs on the subject amount to demonstration. The second wife was one of the witnesses in the cause, and she testified that she never knew, or had the least intimation, until after the death of her 58 CONTRACT OF MARRIAGE. husband, that the validity of their marriage was, in any respect, called in question; and when she was asked, " Was any other mar- riage ceremony ever performed in which you and Abraham Voorhees were the contracting parties ? " her answer was " There was not." Further than this, she was then fully examined by her own counsel, and she made no pretense of any other interchange of consent to marriage between herself and the man she cohabited with except such as had been given at the time of their ceremonious nuptials. Most certainly this evidence, if we apply to it the ordinary legal tests, is entirely conclusive, and absolutely proves that there never was any second marriage, in any form whatever, between these par- ties. It is to be borne in mind that cohabitation with matrimonial habit and repute is, standing alone, nothing more than testimony in proof of marriage ; the conduct of the persons to whom it relates does not constitute marriage, and, consequently, from its evidential nature it is liable to be rebutted by other proofs. This, as has been already said, was done in the present instance. Marriage Induced by Fraud. HARRISON v. HARRISON. 94 Mich. 559- — i 8 93- Appeal from Gratiot. Bill for divorce. Defendant appeals. Affirmed, and case re- manded, with directions to permit the defendant to verify his answer, and for a decree in his favor annulling the marriage. Hooker, C. J. * * * The proof convinces us that complain- ant was enceinte at the time of her marriage, and that she succeeded in making him believe that the child, born something over six months after the marriage, was premature and legitimate; and we see no evidence of condonation or of cohabitation after discovery of the truth. Pregnancy before marriage, concealed from the husband, who has not, previous to marriage, sustained improper relations with the wife, is a fraud which is sufficient ground for annulling the marriage, if the discovery of the fact is followed by a cessation of cohabitation, and abandonment. Baker v. Baker, 13 Cal. 87; Bitter v. Bitter, 5 Blackf. 81; Reynolds v. Reynolds, 3 Allen, 605; Morris v. Morris, Wright, 630; Cam's v. Cam's, 24 N. J. Eq. 516. This rule seems to be recognized in the case of Sissung v. Sissung, 65 Mich. 180. MARRIAGE INDUCED BY FRAUD. 59 The answer lacks the verification required by the statute to be appended to bills for divorce. Answers in the nature of cross-bills require this, and no decree can be granted without it. But it may be amended. The proof shows an absence of collusion, and we will, therefore, remand the case, with direction that such amendment be permitted, and thereupon a decree be entered by the Circuit Court, in chancery, dismissing complainant's bill, and annulling the mar- riage, as prayed by defendant. The complainant will recover costs of this court. The other justices concurred. FARLEY v. FARLEY. 94 Ala. 501. — 1891. Appeal from the Chancery Court of Montgomery. The bill in this case was filed on the 18th of September, 1890, by Mrs. Daisy Farley, as the wife of Hoxie C. Farley, and sought a divorce from her husband on the ground of abandonment and adultery, and also alimony. The bill alleged that the marriage was celebrated on the 6th of May, 1890, and that the complainant " is over the age of eighteen years; " and further, that a fraud was practiced upon her in the performance of the marriage ceremony by a person who had no authority to perform it, and without a license from the judge of probate though she was told that one had been procured. There was a demurrer to the bill, assigning various grounds of demurrer; and the decree overruling the demurrer is here assigned as error. Per Curiam. * * * Complainant consented, in fact became the wife of defendant, though beguiled into the assumption at that time, of the status of marriage, by misrepresentations of the legality and binding effect of the formal ceremony. The precise question is, when there is an executory agreement to marry, with the under- standing that the parties were not to become husband and wife with- out formal solemnization, what is the effect of an intervening cere- mony, without license, performed by a person unauthorized, imposed on complainant by false pretenses and representations, but believed by her to be lawful and bona fide? A marriage procured by decep- tion and fraud, except, it may be, of certain kinds and magnitude, is not absolutely void, but only voidable, and valid for all civil pur- poses unless and until avoided by the deceived party. The party imposed upon may disaffirm or ratify the contract of marriage after discovery of the fraud; and, it has been held, that voluntary cohabi- 60 CONTRACT OF MARRIAGE. tation thereafter as husband and wife is a ratification. As under the rule declared in Beggs v. State, supra, a valid marriage may be con- stituted without license and solemnization, merely by the consent of the parties, certainly complainant may ratify her consent to an immediate marriage, procured by false representations, and thus, by relation, render the marriage good ab initio. The contract, however, can be avoided only by the party defrauded. Says Mr. Bishop: " The doctrine seems to require no qualification, that a voidable marriage is, until the act or sentence transpires which renders it void, as good for every purpose as if it contained no infirmity." — i Bishop's Mar. & Div. sec. 116. If, in answer to the usual questions, though propounded by a person not authorized to solemnize the marriage, both parties consented to a union, defendant is estopped from asserting that the consent was not mutual, or that he did not consent; he will not be permitted to take advantage of his own wrong and fraud to escape the duties and responsibilities of the marital relation. ' The party who commits a fraud is bound, and remains bound, until the party deceived has made his or her election and will thereafter be bound, or not, according to the election made." — Tomppcrt v. Tomppert, 13 Bush. 326; Hampstead v. Plaistmv, 49 N. H. 84; State v. Murphy, 6 Ala. 765. The allegations of the bill, fairly construed, show that com- plainant elected to treat and recognize the marriage as valid. The averment as to the charge of adultery is, " that said defend- ant has been guilty of adultery with divers parties and persons, whose names are unknown to your oratrix." The charge is averred with a sufficient degree of certainty. Holston v. Holston, 23 Ala. 777. Affirmed. The opinion in this case was prepared by the late Judge Clopton, and was adopted by the court after his death. Marriage Under Duress. TODD v. TODD. 149 Pa. St. 60. — 1892. Argued April 6, 1892. Appeal, No. 273, Jan. T., 1892, by appel- lant, from decree of C. P. No. 2, Phila. Co., June T., 1888, No. 23, dismissing libel in divorce. Before Paxson, C. J., Sterrett, Wil- liams, McCollum and Heydrick, JJ. An answer having been filed, the case was referred to Thomas B. Reeves, as master; and he reported in favor of granting the divorce. MARRIAGE UNDER DURESS 6l The facts appear in the following opinion of the court below, by Pennypacker, J., sustaining exceptions to the master's report: " It is admitted that the parties to this proceeding in divorce had had illicit intercourse some time in January, 1885, and that they were married March 12, 1885. The libel charges that the respond- ent did, by fraud, covin, deceit and duress, practiced on the libel- ant, directly previous to the time of said marriage, cause him to be- come a party to said marriage ceremony, by representing to him that she was pregnant and with child as a result of illicit intercourse with libelant; and, by threats of bodily harm, made through her sons and other persons, and by anonymous letters, which libelant has since ascertained were written by the respondent, procured and induced the libelant against his own free will to become a party to said marriage ceremony. "The act of May 8th, 1854, provides, inter alia, that a divorce may be granted ' where the alleged marriage was procured by fraud, force, or coercion, and has not been subsequently confirmed by the acts of the parties.' " The grounds upon which the court is asked to grant this divorce are, that the respondent procured the marriage by fraud and by duress per minas. The alleged fraud consists in the fact that the respondent told the libelant before the marriage that she was preg- nant in consequence of the intercourse between them. In order to constitute a fraud it is necessary that the statement should be untrue in fact and that the libelant should have been deceived by it. The respondent testified that she was pregnant at the time and subse- quently had a miscarriage. There was nothing to corroborate her statement except the testimony of a woman who judged by appear- ance, and whose testimony was shaken by testimony upon the part of experts, that she could not form a correct conclusion in this way. The master has found as a fact that the statement was untrue. But was the libelant deceived by it ? The intercourse occurred in Janu- ary, and the marriage took place March 12, following. It may well be doubted whether a woman within that period could herself have any certainty as to her condition. He nowhere says that he believed the statement to be true, and, in fact, the only inference to be drawn from his testimony is that he did not believe it. He says: ' About a week after the intercourse referred to by me she informed me that she was pregnant, and she persisted in stating this up to the time of the marriage. When she first told me she was pregnant, I told her that could not be, because I thought she was too old.' There is no evidence of his reliance upon or even belief in the truth of her repre- sentation at the time of the marriage. It is doubtful whether such 62 CONTRACT OF MARRIAGE. a representation, even if false and relied upon in good faith, would constitute sufficient ground for granting a divorce. Hoffman v. Hoff- man, 30 Pa. 417. It is not alleged that there was any force used to compel the marriage, and in order to justify a divorce under the statute, upon the ground of threats, they must be such threats against, the life or to do bodily harm as would overpower the judgment and coerce the will. There must be such a mental condition, as a result of the threats, that the libelant did not and could not in reality con- sent to the marriage. It does not appear, from the evidence, that the respondent made or knew of any threats against the libelant. She had two sons who were young men. One of them, at the commence- ment of a dental college in Baltimore, on the 5th of March preceding the marriage, pointed a cocked pistol at the head of a brother of the libelant, and by this' means obtained the diploma of the libelant. At the same time he said that he would hunt the libelant until he found him and then shoot him. These facts were communicated to the libelant. Dr. Winder, one of the witnesses, testified that a son of the respondent said to him, that' if George Todd did not marry his mother he intended to kill him; ' and further, that he, witness, was ' perfectly satisfied that they would have killed him,' but whether or not this was brought to the knowledge of the libelant does not appear. The libelant was a man twenty-seven years of age. He was in Syracuse, New York, and the respondent and her sons were in Baltimore. The libelant, in his examination in chief, said nothing as to the effect of these threats upon him or upon his actions in con- senting to the marriage, but, on cross-examination, he testified: ' Q. Do you say it was through any fear of bodily harm that you were induced to marry the respondent ? A. I do.' This is the only evidence there is to prove the coercion required by the statute. Dr. Winder wrote to the libelant, promising to protect him from any violence on the part of the sons of the respondent until the mar- riage ceremony would be performed. The libelant went of his own will to Baltimore, and the ceremony was performed by a clergyman in the presence only of Dr. Winder and a wife of one of the sons of the respondent. No force and no threats were at that time made. " Dr. Winder testified as to a contemporary conversation with the libelant: ' He said either that he was going to, or that he had mar- ried Mrs. Finney out of respect for Dr. Finney, and to remedy the wrong he had done him, and that he would never live with her as his wife, and that she would never see him again after the ceremony. That he intended to applv for a divorce. This conversation did occur prior to the marriage.' MARRIAGE IN JEST. 63 " The libelant left the respondent immediately after the marriage and the same day wrote to her: ' Mrs. Finney: I cannot call you by another name although you have it. I have this day done that which will save your family and yourself, and only did it for your sons', Willie and Gordon, and your daughter's sake, not for yours. You knew you were trying to do wrong, and the idea of your ever thinking of me is ridiculous. I cannot express my contempt for you.' " It seems, therefore, to be reasonably clear that, while there were threats of bodily harm made by the sons, the libelant was not coerced by these threats, but that he was induced to enter into the marriage in order to remedy the wrong and save her family from disgrace, in the hope of speedily securing a divorce. " Neither of the grounds necessary to bring the case within the statute is made out, and the exceptions are, therefore, sustained." The libel was subsequently dismissed. Error assigned was the dismissal of the libel. Per Curiam, April 25, 1892: While it may seem harsh to refuse the libelant a divorce, we are clearly of opinion that he has not made out a case within the act of assembly. The learned judge of the court below has given sufficient reasons for his decree, which render a discussion of the case here unnecessary. The decree is affirmed, and the appeal dismissed at the costs of the appellant. Marriage in Jest. McCLURG v. TERRY. 21 N. J. Eq. 225. — 1870. The Chancellor: The complainant seeks to have the ceremony of marriage performed between herself and the defendant, in No- vember, 1869, declared to be a nullity. The ground on which she asks this decree is, that although the ceremony was actually per- formed, and by a justice of the peace of the county, it was only in jest, and not intended to be a contract of marriage, and that it was so understood at the time by both parties, and the others present; and that both parties have ever since so considered and treated it, and have never lived together or acted towards each other as man and wife. The bill and answer both state these as the facts of the case, and that neither party intended it as a marriage, or was willing 64 CONTRACT OF MARRIAGE. to take the other as husband or wife. These statements are corrob- orated by the witnesses present. The complainant is an infant of nineteen years, and had returned late in the evening to Jersey City, from an excursion with the defendant and a number of young friends, among whom was a justice of the peace, and all being in good spirits, excited by the excursion, she in jest challenged the defendant to be married to her on the spot; he in the same spirit accepted the chal- lenge, and the justice at their request performed the ceremony, they making the proper responses. The ceremony was in the usual and proper form, the justice doubting whether it was in earnest or in jest. The defendant escorted the complainant to her home, and left her there as usual on occasions of such excursions ; both acted and treated the matter as if no ceremony had taken place. After some time the friends of the complainant having heard of the ceremony, and that it had been formally and properly performed before the proper magistrate, raised the question and entertained doubts whether it was not a legal marriage; and the justice meditated returning a certificate of the marriage to be recorded before the proper officer. The bill seeks to have the marriage declared a nullity, and to re- strain the justice from certifying it for record. Mere words, without any intention corresponding to them, will not make a marriage or any other civil contract. But the words are the evidence of such intention, and if once exchanged, it must be clearly shown that both parties intended and understood that they were not to have effect. In this case the evidence is clear that no marriage was intended by either party; that it was a mere jest got up in the exuberance of spirits to amuse the company and them- selves. If this is so, there is no marriage. On this part of the case I have no difficulty. I am satisfied that this court has the power, and that this is a proper case to declare this marriage a nullity. CHAPTER III. HUSBAND AND WIFE. Wifes Ante-nuptial Contracts with Third Persons. LAMB v. BELDEN. 16 Ark. 539.— 1855. Error to the Circuit Court of Arkansas County. Mr. Justice Scott: This action was commenced by attachment. The declaration shows a promissory note executed by Lamb's wife, when a feme sole, and her subsequent intermarriage with Lamb. The attachment was levied in April, 1854, upon goods, wares and merchandise, which were taken into the custody of the sheriff. At the October Term, 1854, of the Arkansas Circuit Court, in which this cause was then pending, Lamb pleaded that since the institu- tion of this suit, to wit: on the 1st day of October, 1854, his then late wife aforesaid departed this life, whereby he became exonerated from liability on the demand in the declaration mentioned. To this plea the Beldens interposed a demurrer, which the court sustained, and Lamb, electing to rest, the Beldens suggested and proved the death of Mrs. Lamb, since the commencement of this suit, and the court ordered it to abate as to her, and proceeded to render final judgment against Lamb, who has brought the case here by writ of error. The authorities distinctly show that the husband is not liable after the death of his wife for debts contracted by her while a. feme sole, unless judgment has been recovered therefor against him in the life- time of his wife. Her death extinguishes forever all such liabilities, not at that time in judgment against him. And this is the rule, both at law and in equity, although the husband may have received a fortune by his wife, (besides the authorities cited by the counsel for the plaintiff in error to this point, see Morrmcs v. Whitesides' Ex. t 10 D. Mon. 412; Buekner v . Smith, 4 Dessau R. 371; Witherspoon v. Dubose, 1 Bayle's Ch. R. 166; Henning's Edition of Noyes' Maxims, 35.) Under the attachment laws of this State, the property attached, in case it be not released in the manner provided, or its proceeds, if perishable, is to remain in the hands of the officer to abide the judg- ment of the court on the plaintiff's demand. Thus the lien created [Domestic Relations — 5.] [65] 66 HUSBAND AND WIFE. by the statute can never be of any avail to the plaintiff until he obtains a judgment in his favor upon his demand. Until then, his lien is inchoate and imperfect. If he fails to establish his claim, and judgment is rendered against him, his inchoate lien vanishes at once. Thus it is essentially dependent upon the judgment to be rendered in the cause; where, therefore, the defendant interposes by his plea, as in this case, an insuperable obstacle to any judgment upon the plaintiff's demand in his favor, this inchoate lien must necessarily be at end in the judgment that will be rendered upon such a plea. ******** In the case before us the law acts upon the remedy by extinguish- ing the right which was dependent for its life upon the life of the wife. The judgment must be reversed and the cause remanded. GRAY v. THACKER. 4 Ala. 136. — 1842. Error in the Circuit Court of Coosa. Action of debt commenced by the defendant against the plaintiff in error before a justice of the peace. Plaintiff states that Caroline Burton made her note, payable to the plaintiff for twenty-one dollars and fifty cents, for value received, dated 4th February, 1839, and due one day after date. Since the making of said note, and before the commencement of this suit, she has married said defendant, whereby he became liable to pay said note to the plaintiff. Damage fifty dollars. To this statement the defendant craved oyer of the warrant, and pleaded in abatement a variance between the warrant and the state- ment, in this, that the warrant was sued out against Gray alone, and the statement was against him and his wife. To this plea the plaintiff demurred, which the court sustained, and gave judgment for the plaintiff for the debt. From this judgment this writ is prosecuted by the defendant who assigns for error — 1. The judgment of the court sustaining the demurrer. 2. In giving judgment against plaintiff in error. 3. In giving judgment against plaintiff in error alone, while the statement is against him and his wife. Ormond, J. We consider, that in accordance with the liberality which has always been extended towards proceedings before justices wife's ante-nuptial contracts with third person. 67 of the peace, by this court, the warrant may be considered as sued out against the plaintiff and wife jointly, and that the statement fol- lows the warrant. But the judgment being against the defendant alone, cannot be sustained. The judgment must be against all who are parties to the writ and declaration ; and especially in a case like the present, where, if the judgment were properly rendered, in the event of the death of the husband, would survive against the wife, but as this judgment is rendered would survive against the repre- sentative of the husband. Let the judgment be reversed and the cause remanded. PARKER v. COWAN & DICKINSON. 1 Heisk. (Texx.) 518. — 1870. Ix the Circuit Court, before E. T. Hall, J. Nicholsox, C. J. Plaintiff in error, whilst a feme sole, bought goods, wares and merchandise, of defendants in error to the amount of $1,232. She afterwards married, and in settlement of said account, her husband and herself executed their joint note to de- fendants in error, for the amount of the account. Soon after the death of Wm. Parker, her husband, the attorney of defendants in error, called on plaintiff in error, and presented to her the note and account, and requested payment. " She replied that she could not pay the debt just then but said it was a just debt, and she did not intend that the estate of her late husband, William Parker, should pay any part of the debt, as it was her debt that she made be- fore she married him. She said that she would pay the claim, and asked indulgence for a short time, which witness promised to give and did give." Upon the failure to pay, suit was brought against her in the Cir- cuit Court of Monroe county. The declaration contained two counts — one on the account and the other on the note. The plaintiff in error put in the plea of nil debit, and several special pleas, to the effect that she was not liable on the account, because it was extinguished by the note, and not liable on the note, because she was a feme covert when it was executed. To these pleas there were replications and issues joined. The jury found a verdict in favor of defendants in error on the second count of the declaration, which was on the note; and upon the court discharging a rule for a new trial, plaintiff in error appealed in error to this court. 68 HUSBAND AND WIFE. When the circuit judge came to charge the jury, he was requested by the plaintiff in error to withdraw from them the evidence before detailed, as to the promises by plaintiff in error to pay the debt soon, and her request for indulgence. The judge refused to withdraw the evidence; and his refusal to do so is the error now relied on for a reversal of the judgment. The first question to be decided is, what was the legal effect of the execution of the note by complainant and her husband on the account made by complainant before her marriage ? Was it an abso- lute extinguishment and satisfaction of the prior indebtedness rest- ing upon the account ? In Chitty on Bills, 172, it is said: " A per- son, by taking a bill of exchange or promissory note, in satisfaction of a former simple contract debt, or of a simple contract debt, created at the time, suspends his remedy, and is precluded from afterwards waiving it, and suing the person who gave it to him for the original debt, before the bill has been dishonored; for the taking of the bill is prima facie a satisfaction of the debt, and, at least, amounts to an agreement to give the person delivering it credit for the length of time it has to run." In Robinson v. Branch, 3 Sneed, 506, it was held that " the execution of a note, under seal, isprima facie evidence of a settlement of all pre-existing accounts between the parties, and casts the burden of proof upon the party asserting otherwise." It follows that the execution of the note by complain- ant and her husband was not an absolute extinguishment and satis- faction of the original debt. It was a suspension of the right to sue on the original debt until the note was dishonored; and it was prima facie evidence that the account was settled and satisfied. The next question is as to the legal effect of the execution of the note by complainant, she being at the time a feme covert. With certain exceptions, a married woman is incapable of entering into any contract so as to bind herself personally, or of suing or being sued in her own name, during her coverture. By the execution of the note, therefore, she incurred no liability to be sued. But it does not follow that the original debt was thereby in any way affected. By her marriage the law suspended the right of her creditor to enforce his claim by suit against her; he could only enforce the claim by suit against her husband. The giving of the note by the husband had no other effect on the original debt, as we have seen, than to suspend the right of the defendant in error to sue, except upon the note, until payment thereof* was refused. After payment of the note was refused, suit could be brought against the husband on either the note or the account; but during the coverture, suit could be brought against the wife alone upon wife's ante-nuptial contracts with third person. 69 neither the note nor the account. This was the legal consequence of her being a married woman. But whilst the note, during the coverture, created no obligation upon her, yet it cannot properly be said to be a contract void ab initio, as it would have been if given for a debt created during the coverture. Having been given for a legal liability existing before her marriage, the note can only be regarded as a nullity and as having no obligatory force during the coverture, and not after she became discovert, unless so ratified as to revive the original liability. The next question is, as to the legal effect of the promise made by plaintiff in error after she became discovert. It must be conceded that she was then under no legal obligation to pay the note. As the jury found by their verdict that she was liable on the account, and as we are not called on to determine whether that finding was erroneous or not, we need not express any opinion on that point. But as the jury found that the plaintiff in error was liable en the note, and as this finding was manifestly based upon the evidence of her promise to pay, the question is presented, was the circuit judge in error in refusing to exclude that evidence from the jury ? It is well settled that " a moral obligation is not alone sufficient legal consideration to support either an express or implied promise." 1 Story on Contr., sec. 465. But this general rule is subject to this exception: " A moral obligation to pay money or to perform a duty is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law, but for the interference of some rule of law." 1 Parsons on Contr., 361; 1 Story on Contr., sec. 466. If plaintiff in error had been under no previous liability to pay the debt for which the note was given, her simple promise to pay would have created no liability, as it would have been a promise to pay a contract void ab initio, and, therefore, not capable of ratification. 1 Story on Contr., sec. 468. But because she was under a legal obligation, before her marriage, to pay for the goods purchased, when the impediment to the enforcement of that obligation, pro- duced by her marriage, was removed by her becoming discovert, this previous legal liability constituted a sufficient moral obligation to support the promise to pay the debt. When the note and account were presented to her and payment was requested, her promise to pay the debt might well be regarded by the jury as virtually a re-de- livery, as well as a ratification of the note; and being under a moral obligation to pay, as she freely acknowledged, the verdict of the jury was well supported by the proof. 70 HUSBAND AND WIFE. There was, therefore, no error in the refusal of the circuit judge to exclude from the jury the evidence of the promise by plaintiff in error to pay the debt, and we affirm the judgment. Wife's Post-nuptial Contracts with T/iird Persons. FARRAR v. BESSEY. 24 Vt. 89. — 1852. Book account. The action was commenced before a justice of the peace, and came to the County Court by appeal. Judgment to account was rendered in the County Court, and an auditor was appointed, who reported the facts. Upon these facts, the County Court rendered judgment for the defendants upon the report. Exceptions by plaintiff. Royce, Ch. J. This was an action of book account, brought to recover a balance claimed to be due from the wife. The whole of the plaintiff's account, except one item of fifty cents, on the debit side, and two items of credit, amounting to two dollars and fifty cents, accrued before the intermarriage of the defendants. They presented no account before the auditor, but relied on the statute of limitations. To this defense two answers were attempted before the auditor, but only one of them is now insisted on. This is based upon the fact, that the three items referred to accrued within six years before the commencement of the action. And these entries are found to have been justified by real transactions between the parties. But the report shows that this part of the account accrued after the defendants had intermarried. When it accrued, the wife was no longer capable of contracting a debt against herself, nor was she entitled to claim the benefit of these credits, except as payments made by her husband upon her debt. In legal effect, this part of the account arose between the plaintiff and the husband alone; so that the account properly existing with the wife, was not brought down to a time within the six years. Gay et ux. v. Estate of Rogers, 18 Vt. 342. It is found by the auditor, however, that the services of the wife, which constituted these two items of credit, were, by the express consent of both defendants, received to be applied in part payment of the previous account against the wife. They must have the application which was then intended. And the general rule is, that the admission of a debt by part payment, is sufficient to warrant the implication of a new promise to pay the unsatisfied bal- WIFE'S POST-NUPTIAL CONTRACTS WITH THIRD PERSON. Jl ance. Strong v. McConnell, 5 Vt. 338; Joslyn v. Smith, 13 Vt. 353; Munson v. j?/^ and Sanderson v. Milton Stage Co., 18 Vt. 53-107. But to authorize the implication of such new promise, from part payment, or other acknowledgment of a debt, the party whose promise is implied must be legally capable of making a valid and binding express promise. And as a feme covert cannot make such a promise in her own right, especially while living with her husband, it follows that no effectual promise of the wife can be implied in the present case, from the fact of this part payment of her debt. This is a legitimate and obvious conclusion, from the doctrine held in Pittam v. Foster et al., 8 C. L. R. 67. And we think it must, from the decision of this court in Powers v. Southgate and Wife, 15 Vt. 471, that no promise of the husband, which could affect the rights of his wife, under the statute of limitations, was to be implied from the payment made by him. The cause of action against the wife, was therefore barred; and the present suit, founded on the assump- tion of her continuing liability, could not be sustained. The judg- ment of the County Court is accordingly affirmed. SHEPPARD v. KINDLE. 3 Humph. (Tenn.) 80. — 1842. Green, J. The declaration in this case sets out as the cause of action, that Nicy B. Sheppard, then and still being the wife of George P. Sheppard, on the 9th of August, 1838 (together with Allen B. Lane and B. Edmundson who are not sued), made her prom- issory note, payable ninety days after date, by which she promised to pay the plaintiff three hundred dollars. In the court below, the plea was withdrawn and a judgment was taken nil dicit, and a motion in arrest of judgment made and overruled. It is not insisted here that the note executed by Nicy B. Shep- pard, a feme covert, created any legal obligation on her, or her hus- band George P. Sheppard; but it is said her coverture should have been pleaded in abatement. When a feme covert executes an obligation, and afterwards marries and is sued alone, the plea in abatement, because the husband is not joined, is the proper defense. In that case, the defense does not go to the cause of action, but the form in which it is brought. But in the present case, there is no sufficient cause of action. The note executed by the feme covert creates no right of action against her, or her husband. Consequently, if the facts had not appeared in the declaration, a plea in bar would have J2 HUSBAND AND WIFE. been the proper defense. But the declaration sets out the facts which show there is no cause of action, and consequently it is bad upon general demurrer, or may be taken advantage of by motion in arrest of judgment. We think, therefore, the judgment should have been arrested, and the Circuit Court refusing to do so, the judgment must be reversed. FOSTER v. WILCOX. 10 R. I. 443.— 1873. Action of covenant to recover damages for a breach of covenant of quiet enjoyment given by the defendants' ancestor. Durfee, J. This is an action to recover damages for the breach of a covenant of quiet enjoyment contained in a lease to the plaintiff, executed May 26, 1840, by Horace A. Wilcox and Sally B. Wilcox, his wife. The plaintiff was evicted from a portion of the demised premises by the holders of the rightful title, in August, 186 1, during the continuance of the lease, and in the lifetime of the lessors. The action is prosecuted against the defendants as the heirs-at-law and devisees of the said Sally B. Wilcox. The case is tried to the court, trial by jury having been waived. The first question presented is whether the action can be main- tained, — the objection to its maintenance being that the covenant of a married woman does not bind her, and consequently cannot bind her heirs or devisees. The plaintiff's counsel admits that the action would not lie against Sally B. Wilcox, if she were alive, but contends, nevertheless, that the covenant is not so wholly void that an action cannot be maintained for a breach thereof against her heirs and devisees. The argument seems to imply or assume that the obstacle to the enforcement of the contracts of a married woman is not her inability to contract but her immunity from suit. If this were so, however, her exemption would continue only during her coverture. Her exemption is much more absolute. The strongest cases against her subject her to liability only in case of a new provi- sion made after she has become discovert; Lee v. Muggeridge, 5 Taunt. 35; Franklin v. Bcatty, 27 Miss. 347; while a still more authoritative current of decision is to the effect that her contract made during coverture is not affirmable even by a new provision after she becomes discovert, without a consideration; Lloyd v. Lee, 1 Str. 94; Meyer v. Howarth, 8 Ad. & El. 467; Wennall v. Adney, 3 B. & P. 247, note; Watkins v. Halstead, 2 Sandf. 311; Littlefield v. S/iee, 2 B. & Ad. 811 ; unless, at least, the consideration of the original wife's post-nuptial contracts with third person. 73 contract was a benefit personally received by her. Goulding v. Davidson, 26 N. Y. 604. The plaintiff's counsel refers to cases which hold that a widow is bound by the covenants contained in a lease of her lands, executed by her and her husband during his life, but not in a way to bind her, in case she accepts the rent after his death. See Wotton v. Hele, 3 Saund. (Wms. ed.), 180. But these cases, in so far as they are authoritative, do not appear to hold that the covenants have any validity against her previous to her acceptance of the rent; but only that by accepting the rent she affirms the lease and her covenants therein, and thus gives them validity. Worthingtori s Lessee v. Young, 6 Ohio, 313, 335. In the case at bar, it is doubtful if an acceptance of the rent could be construed to have any such effect; for, aside from the covenants, the lease is valid without any affirma- tion. But if it be otherwise, there has been no acceptance of any rent, since the death of Horace A. Wilcox, for that portion of the demised premises from which the plaintiff has been evicted; and certainly if an affirmation is to be implied from an acceptance of rent, it can be implied only to the extent to which the rent has been accepted. The plaintiff's counsel refers to the cases of Nash v. Spofford, 10 Met. 192, and Hill* s Lessee v . West, 8 Ohio, 226, which hold that a covenant of warranty in the deed of a married woman is operative against her by way of estoppel. But the courts which allow the covenant this negative efficacy do not allow it any other effect; Foivler v. Shearer, 7 Mass. 14; Colcordv. Swan, 7 Mass. 291; Wad- leigh v. Sutton, 6 N. H. 17; and there are cases which hold that the covenant is not operative even by way of estoppel to transfer an after-acquired title. Jackson v. Vandcrheyden, 17 Johns. 167; Den v. Dcmarest 1 Zab. 525, 541. And see Wight v. Shaw, 5 Cush. 56, 66. ******** Judgment must be given for the defendants for their costs. GREGORY v. PIERCE. 4 Met. (Mass.) 478. — 1842. Assumpsit on a promissory note, signed by the defendant in the presence of an attesting witness, dated October 6th, 1825, and pay- able to Putnam & Gregory, partners, of whom the plaintiff is survivor. "The defendant was married to Varney Pierce, Jr., in 1806, who, in 1816, became insolvent, and left her and went out of the com- 74 HUSBAND AND WIFE. monwealth, and did not return till 181S, when he came back and remained with her about a week. He then left her and went to Ohio, where he remained till his death in 1832. He made no provi- sion for the support of his wife and family, after he left her in 1816; but she supported herself and family, after he left her, by her own labor, contracting debts and making contracts in her own name. Putnam & Gregory employed her to do work for them, and supplied her with necessaries for the support of herself and family; and the note in suit was given for the balance of account between the parties." Judgment for the plaintiff, and the defendant appealed. Shaw, C. J. The principle is now to be considered as estab- lished in this State, as a necessary exception to the rule of the com- mon law, placing a married woman under disability to contract or maintain a suit, that where the husband was never within the com- monwealth, or has gone beyond its jurisdiction, has wholly renounced his marital rights and duties, and deserted his wife, she may make- and take contracts, and sue and be sued in her own name, as a feme sole. It is an application of an old rule of the common law, which took away the disability of coverture when the husband was exiled or had abjured the realm. Gregory v. Paul, 15 Mass. 31 ; Abbot v. Bayhy, 6 Pick. 89. In the latter case, it was held, that in this respect, the residence of the husband in another State of these United States was equivalent to a residence in any foreign State; he being equally beyond the operation of the laws of the common- wealth, and the jurisdiction of its courts. But to accomplish this change in the civil relations of the wife, the desertion by the husband must be absolute and complete; it must be a voluntary separation from and abandonment of the wife embracing both the fact and intent of the husband to renounce de facto, and as far as he can do it, the marital relation, and leave his wife to act as feme sole. Such is the renunciation, coupled with a continued absence in a foreign State or country, which is held to operate like an abjuration of the realm. In the present case, the court are of opinion, that the circum- stances stated are not sufficient to enable the court to determine whether the husband had so deserted his wife, when the note in question was given. The only facts stated are, that he was insol- vent when he went away; that he was absent, residing seven or eight years in Ohio; that he made no provision for his wife and her family, after 1816; and that she supported herself and them by her own labor. But it does not appear that he was of ability to provide for her; that he was not in correspondence with her; that he declared WIFE'S CONTRACTS FOR NECESSARIES. 75 any intention to desert her when he left, or manifested any such intention afterwards; or that he was not necessarily detained by sickness, imprisonment or poverty. The fact of desertion by a husband may be proved by a great variety of circumstances leading with more or less probability to that conclusion; as, for instance, leaving his wife, with a declared intention never to return; marrying another woman or otherwise living in adultery, abroad; absence for a long time, not being neces- sarily detained by his occupation or business, or otherwise; making no provision for his wife, or wife and family, being of ability to do so; providing no dwelling or home for her, or prohibiting her from following him; and many other circumstances tending to prove the absolute desertion before described. The general rule being that a married woman cannot make a contract or be sued, the burden of proof is upon the plaintiff to show that she is within the exception. In an agreed statement of facts, such fact of desertion, using this term in the technical sense above expressed, as a total renunciation of the marriage relation, must be agreed to, or such other facts must be agreed to as to render the conclusion inevitable. If the facts stated are all that can be proved in the case, the court would consider that the plaintiff had not sustained the burden of proof, and, therefore, could not have judgment. See Williamson v. Dawes, 9 Bing. 292 ; Stretton v. Bushnach, 4 Moore & Scott, 678; S. C, 1 Bing. N. R. 139; Bean v. Morgan, 4 McCord, 148. But apprehending that the statement may have been agreed to, under a misapprehen- sion of the legal effect of the facts stated, and that other evidence may exist, the court are of opinion, and do order, that the agreed statement of facts be discharged, and a trial had at the bar of the Court of Common Pleas. Wifes Contracts for Necessaries. GAFFORD v. DUNHAM. — Ala. — . — 1896. ^20 So. Rep. 346.) Coleman, J. F. W. Dunham sued the appellant, F. H. Gafford, and his wife, M. B. Gafford, upon an account for groceries and sup- plies alleged to have been sold by one Boggan, the assignor of plain- tiff. The uncontroverted evidence shows that the articles were sold rj. and upon the sole credit of, M. B. Gafford. The contract for their purchase was made for her only, and all payments which had j6 HUSBAND AND WIFE. been credited upon the account were made by her. The articles were charged to her, and the name of F. H. Gafford nowhere appears upon the books of account, nor is it pretended that at any- time was he regarded as the debtor. After hearing the evidence, the court, without the intervention of a jury, rendered judgment in favor of M. B. Gafford, and against the husband, F. H. Gafford, who prosecutes the present appeal. At the trial, the wife interposed the plea of coverture, and the failure of the husband to give his assent in writing to the contract. This plea was fully sustained by the evidence. We presume the court rendered judgment against the husband, upon the ground that as the contract made with the wife was void, and as the evidence showed that the articles purchased were necessaries of life, and suitable to the degree and station in life of the wife of F. H. Gafford, his common-law liability arose, and he was chargeable for such necessaries furnished to her. Considered with reference to the evidence as to the furnishing of the articles to the wife, or as to the common law liability of the husband for necessaries furnished to the wife, the conclusion of the court was erroneous. The common law liability of the husband for necessaries and suitable comforts has always rested upon the assumption that credit was given to the husband, and not to the wife, and that the purchase was made with his implied assent. In no case did this liability arise when the facts showed affirma- tively that credit was given to the wife, and charged to her, and not to the husband, and the goods were sold not upon his implied assent that they were to be charged to him. Hughes v. Chadwick, 6 Ala. 651; Pearson v. Darrington, 32 Ala. 231; O'Connor v. Cham- berlain, 59 Ala. 431; Gayle v. Marshall, 70 Ala. 522. ******** The judgment is reversed, and a judgment will be here rendered in favor of the appellant. Reversed and rendered. VUSLER v. COX. 53 N. J. Law, 516.— 1891. On certiorari to Warren Pleas to review a judgment of that court upon the trial of an appeal from a Justice's Court. This suit was brought by Dr. Henry M. Cox, a physician, against the executors of George Vusler, deceased, to recover a bill for medical services rendered to the testator's wife between March 27th, 1883, and October 2d, of the same year. The testator died in May, 1886. WIFE'S CONTRACTS FOR NECESSARIES JJ The court certified that prior to May, 1880, the testator and his wife lived together for five or six years ; that on or about the 5th day of May the testator's wife, in his absence, moved away from his house and left him, and went to her brother's house, a few miles away; that she removed from her husband's house everything that belonged to her; that when she took away the last load of goods she told her husband that she was going to leave and was not coming back again ; that the testator, after his wife left, lived with his sons until his death; that his wife never returned to him, but continued to reside at her brother's house, and that it was during her illness at her brother's house that the plaintiff rendered the professional services sued for. The court further certified that it did not appear that the wife had any reason for leaving her husband, and that it did not appear that the plaintiff had any knowledge that the testator's wife was not liv- ing with him — the doctor denying that he knew anything about it. Depue, J. It may be inferred from the case certified, and will be assumed, that the plaintiff rendered these services to the testator's wife without knowledge that she was living in a state of separation from her husband. The liability of a husband on a contract made by the wife is usually ascribed to those principles which are applicable to the rela- tion of principal and agent. Where husband and wife are living together, the wife has implied authority to pledge her husband's credit for such things as fall within the domestic department ordinarily confided to her management, and for articles furnished to her for her personal use suitable to the style in which the husband chooses to live. Under such circum- stances the presumption is in favor of the wife's authority to con- tract on behalf of her husband. 1 Ev. Pr. & A. 166; Wilson v. Herbert, 12 Vroom. 454; Jolly v. I\!ees, 15 C. K. X. S. 628; Notes to Manby v. Scott, 3 Sm. Lead. Cas. (9th ed.), 1757. But where the husband and wife are living in a state of separation, the presumption is against the authority of the wife to bind the hus- band by her contract. Under such circumstances the general rule is that the husband is not liable. To this rule there are two excep- tions pertinent to this inquiry, the first of which is where husband and wife separate and live in a state of separation by mutual consent, without any provision for her maintenance or means of her own for her support; the other, where the wife leaves her husband under the stress of his misconduct of such a character as in law is regarded as a justifiable cause for the wife's quitting her husband's society. In 78 HUSBAND AND WIFE. such cases, the presumption being against the liability of the hus- band for the wife's contract, the burden of proof is upon the party- seeking to enforce against him a liability for her contract. He must show affirmatively the special circumstances which shall fix the responsibility on the husband in order to establish his cause of action. Mainwaring v. Leslie, i Moo. & M. 18; Johnston v. Sumner, 3 Hurlst. & N. 261, 268; Blowers v. Sturtevant, 4 Den. 46; Breinig v. Meitzler, 23 Penna. St. 156; Snoverx. Blair, 1 Dutcher, 94; 2 Kent, 147. The cases, English and American, on this subject, are collected in the American editions of Smith's Leading Cases under the head of Man by v. Scott. The certificate of the Court of Common Pleas states that it did not appear that the wife had any reason for leaving her husband, and the facts set out in the certificate tend to show that she left him of her own volition, and without any justifiable cause. Nor will the fact that the plaintiff had no knowledge that the wife was living separate from her husband avail to relieve the plaintiff from the burden of proof. Independently of agency, express or im- plied from cohabitation, the liability of the husband upon contracts made by the wife pledging his credit arises from the acts or miscon- duct of the husband. As was said by Lord Selborne, there is no mandate in law from the fact of marriage only, making the wife the agent in law of her husband to bind him and pledge his credit, except in the particular case of necessity — a necessity which may arise where the husband has deserted the wife, or has by his conduct compelled her to live apart from him. Debenham v. Mellon, 6 App. Cas. 24, 31. On any other hypothesis a wife living separate from her husband without justifiable cause, or even through her own mis- conduct, would have it in her power to pledge his credit by seeking persons with whom to deal who were unaware of the family relations. There being no proof of facts from which agency might be im- plied, and from the fact that the wife was living apart from her hus- band, the presumption being that she had no authority to bind the husband, the plaintiff could make no case against the husband except on proof of those particular circumstances from which the husband's liability would result as a mandate in law. To make out a cause of action against the husband, the plaintiff was bound to prove those special circumstances from which alone the husband's liability for the plaintiff's demands would result. Without such proof he had no case. Upon the case as certified the Court of Common Pleas gave judg- ment for the plaintiff. That judgment was erroneous, and should be reversed. wife's contracts for necessaries. 79 SKINNER v. TIRRELL. 159 Mass. 474.-1893. Morton, J. This is a bill in equity, in which the plaintiff, who has advanced money to the defendant's wife while living apart from her husband, which she expended, it is alleged, in the purchase of neces- saries, seeks to be subrogated to the rights of the persons furnishing the necessaries, and prays that the defendant may be ordered to pay to her the amount so advanced. The defendant demurred to the bill. The demurrer was sustained and the bill was dismissed, and the plaintiff appealed. The demurrer was a general one, and it was claimed at the argu- ment, as one ground of it, that the bill did not set out sufficient facts to show that the wife was living apart from her husband for justifiable cause. Without considering whether this objection was well taken, we assume that, if valid, it could be removed by amend- ment. The question then is whether the bill, if amended so as to remove this objection, can be maintained either on the ground of subrogation or on the ground of a general equity. We think it can- not stand on either. There can be no subrogation unless there is something to be sub- rogated to. A debt or liability cannot be created where none existed for the purpose of effecting a substitution. There never was any liability on the part of the defendant to the parties who furnished the wife with the necessaries. The goods were sold to her and were paid for by her. They were not furnished on the defendant's credit, but on the wife's. The money that was advanced by the plaintiff was not advanced to the parties who furnished the neces- saries, but to the wife, to be expended by her as she saw fit. There is no ground, therefore, for the application of the doctrine of subro- gation. Although the right of subrogation does not depend on the contract, but rests on natural justice and equity, there must be either an agreement, express or implied, to subrogate, or some obli- gation, interest, or right, legal or equitable, on the part of the party making the payment or advance in respect of the matter concerning which payment is made or money advanced, in order to entitle him to subrogation. Hart v. Western Railroad, 13 Met. 99; Amory v. Lowell, 1 Allen, 504; Wall v. Mason, 102 Mass. 313; .Etna Ins. Co. v. Middleport, 124 U. S. 534; Gans x . Tliieme, 93 X. Y. 225, 232; Arnold v. Green, 116 X. Y. 566; Nolte v. Creditors, 7 Mart. (N. S.), La. 602; Johnson v. Barrett, 117 Ind. 551; MeA T eil v. JPiller, 29 \Y. Va. 480; Miller' s Appeal, 119 Pa. St. 620; Suppiger v. Garrets, 20 80 HUSBAND AND WIFE. Bradw. (111.), 62 5; Gadsden v. Brown, Speer's Eq. 37, 41; De Con- cilio v. Brownrigg, 25 Atl. Rep. 383; Brewer v. Nash, 16 R. I. 458, 462; Blackburn Building Society v. Cunliffe, 22 Ch. D. 61; Stevens v. A7//i, r , 84 Me. 291; Sheldon on Subrogation, sees. 2, 3, 240. A mere volunteer is not entitled to subrogation. sEtna Ins. Co. v. Middleport, Arnold v. Green, and Gadsden v. Brown, ubi supra; Shel- don on Subrogation, sees. 241, 242, and cases cited. Nor is one who lends money to another to pay a debt entitled as a matter of right to stand in the creditor's shoes. Sheldon on Subrogation, sees. 241, 242, and cases cited. So far as subrogation is concerned, the plain- tiff's contention resolves itself into the proposition that the defend- ant's wife could have bought on her husband's credit the necessaries which she purchased and paid for with the money advanced to her by the plaintiff; that if the plaintiff had paid the parties supplying the necessaries their several demands, she would have been entitled to be subrogated to their claims against the defendant; and that, therefore, a decree should be entered in her favor against the de- fendant in this suit. If the premises are correct, manifestly this conclusion does not follow from them. There are ancient and modern cases in England which hold that a person advancing money to a married woman under circumstances like those in this case can recover the same of the husband in equity. Harris v. Lee, 1 P. Wms. 482; Marlow v. Pitfeild, 1 P. Wms. 558; Deare v. Soutten, L. R. 9 Eq. 151; Jenner v. Morris, 3 DeG. F. &J. 45; see, also, /// re Wood, 1 DeG., J. & S. 465. These cases have been followed in this country in Connecticut {Kenyan v. Barn's, 47 Conn. 510), and there is a dictum in a case in Pennsylvania. Walker v. Simpson, 7 Watts. & Serg. 83. To the same effect, certain text-writers, also following the English cases, have stated the law to be as there held. 1 Bish. Mar. Div. & Sep. sees. 1190,1191; Pom. Eq. Jur. sees. 1299, 1300; 2 Kent, Com. 146, note; Schouler, Domestic Relations, sec. 61, note. But those cases do not appear to us to rest on any satisfactory principle. It was apparently conceded by the Lord Chancellor in yenner v. Morris, supra, that they did not. He seems to have yielded to them simply as precedents which he was bound to follow. The earliest one, Harris v. Lee, on which the subsequent ohes rely, referred the jurisdiction, without much discussion or consideration of it, to the principle of subrogation. For reasons already given, we think that principle inapplicable. It is said that equity has jurisdiction, because there is no remedy at law. It is admitted that there is none at law. But it is contended that the defendant was bound to furnish his wife with necessaries; that the monev which wife's ante-nuptial contracts with her husband. 8i the plaintiff advanced to her was actually expended in good faith by her for necessaries; that it will be no hardship upon the defendant to be obliged to pay for necessaries which the law would have com- pelled him to furnish; and that in the interests of justice equity should compel him to pay the plaintiff the sums which she has advanced. In effect, this is the same as saying that in equity money advanced to a wife living separate from her husband and for justifi- able cause, and expended by her in good faith in the purchase of necessaries, should itself be regarded as necessaries and recov- erable accordingly. At law it is clear that money is not neces- saries, and that a married woman living separate from her hus- band cannot borrow money on his credit to purchase necessaries. What is necessaries must be the same in equity as at law. It cannot be one thing on one side of the court and another thing on the other. There may be strong reasons why married women, com- pelled by their husbands' misconduct to live apart from them, should be allowed to borrow money on their husband's credit for the purchase of necessaries. It. is for the Legislature, if it deems it ad- visable, to give them such power. In this State they are not with- out a remedy in such cases. The Probate Court may, upon their petition, order the husband to pay to them from time to time such sums of money as it deems expedient for their support. Pub. Sts, c. 147, sees. 33 etseq. It is possible that this statute should be taken as a declaration of the legislative sense that a married woman living apart from her husband should obtain money for necessaries through the aid of the Probate Court, and not by pledging his credit. However that may be, a majority of the court can discover no satisfactory ground on which jurisdiction in equity of the present suit can rest. Decree affirmed. Wifes Ante-nuptial Contracts with her Husband. PIERCE v. PIERCE. 71 N. Y. 154 — 1877. Miller, J. Upon the accounting of Mrs. Pierce, as administratrix of her deceased husband's estate, before the surrogate, it was held that the ante-nuptial agreement entered into at the time of their marriage was valid and in full force, and for that reason she was not entitled to a share, as his widow, in the distribution of his estate, and was only allowed the amount named in said agreement. The agreement referred to purported to have been entered into in con- [Domestic Relations — 6.] 82 HUSBAND AND WIFE. temptation of marriage, and for the purpose of making provision for a fit and proper settlement by the deceased, for the benefit of his intended wife, and thereby the deceased agreed that if the marriage was had and solemnized, he would, in case she survived him, pay or cause to be paid to her, the sum of $500 for her sole and separate use; and she agreed, in consideration of the " money paid to her," that said money should be in full satisfaction of her dower, and bar her from claiming the same, or any share of his personal property, unless given to her. We are of the opinion that the contract in question cannot be upheld, for the reason that the evidence establishes, beyond any con- troversy, that it was executed by the respondent, under a belief — which was created by the conduct and declarations of the de- ceased — that it contained more beneficial provisions in her favor than were contained in the same, and that the deceased, taking advantage of the confidential relationship existing between him and the respondent, who was the intended wife of the deceased, he was chargeable with fraud and misrepresentation in procuring her signa- ture to the same. Ante-nuptial contracts, whereby the future wife releases her claim to her right of dower, and all other rights to the estate of her hus- band upon his decease, are fully recognized in law. When fairly made and executed without fraud or imposition, they will be en- forced by the courts. The surrender and release of rights to be acquired by the intended wife by the marriage relation must, how- ever, be regarded with the most rigid scrutiny; and courts will not enforce contracts of this nature against the wife where the circum- stances establish that she has been over-reached and deceived, or been induced by false representations to enter into a. contract which does not express or carry out the real intention of the parties. The relationship of parties who are about to enter into the marriage state is one of mutual confidence, and far different from that of those who are dealing with each other at arm's length. This is espe- cially the case on the part of the woman; and it is the duty of each to be frank and unreserved when about to enter into an ante-nuptial contract, by a full disclosure of all facts and circumstances which may in any way affect the agreement. Kline v. Kline, 57 Pa. 120. In the case cited, which involved the validity of a marriage con- tract, it was held there was error in the charge of the judge to the jury that the woman was bound to exercise her judgment, and take advantage of the opportunity that existed to obtain information — if she did not do so, it was her fault; and that the parties were deal- ing at arm's length. See, also, case of Kline's Estate, 64 Pa. 122, wife's ante-nuptial contracts with her husband. 83 which holds that parties to such a contract occupy a confidential relation; and Tarbell v. Tarbrfl, 10 Allen, 278; Fay v. Rickman, 1 N. C. (Bush Eq.), 278; Woodward v. Woodward, 5 Sneed. 49. These authorities go very far in holding that the courts require strict proof of fairness, when called upon to enforce an ante-nuptial contract against the wife, and especially when it is apparent that the provision made for the wife is inequitable, unjust, and unreasonably* disproportionate to the means of the husband. The rule undoubt- edly is, that in such a case every presumption is against the validity of the contract, and the burden of proof is cast upon the husband, or those who represent him, in order to uphold and enforce the same as a valid and subsisting agreement. It is also a well-settled prin- ciple that a court of equity will interpose its power to set aside an instrument executed between parties who stand in confidential rela- tions, when there is evidence showing fraud, or even when it appears that undue influence has been exercised, when one party is so situ- ated as to exercise a controlling influence over the will, conduct, and interests of the other. Sears v. SAa/er, 6 N. Y. 268; Nesbitv. Lockman, 34 id. 167. So, also, when one party is intrusted to reduce a contract to writing, he is bound to do so faithfully and truly; and any variation from it, by omitting some of its terms, or by inserting provisions not embraced in it, if not known to the other party and distinctly assented to by him, is a clear fraud. Botsford x . McLean, 45 Barb. 478-488, and authorities cited. While parties to a written agreement should look out for themselves, and ordinarily the writ- ten contract is presumed to express their common intention, yet, when one occupies a confidential relationship to the other, and was intrusted with reducing it to writing, and it is clearly made to appear that the written contract was untrue, and misrepresents and mis- states the real intention as understood and agreed upon, it cannot stand. More especially is this rule applicable when undue advan- tage has been taken, and a fraud perpetrated. Within the rules referred to, a case is made out by the evidence which estab- lishes that the alleged ante-nuptial agreement was nugatory and void. The testimony is uncontradicted and unimpeached, that when the respondent signed the contract, she acted under a belief and conviction that she was thereby to receive the sum of $500 in cash, a deed of a house and lot, and $500 if she survived the de- ceased. The contract was stated or read to the respondent as con- taining those provisions, before the proposed marriage; and when it was assented to by her, at the time when the contract was finally executed, the deceased stated to the clergyman who performed the marriage ceremony, and witnessed the written agreement, that it was 84 HUSBAND AND WIFE. unnecessary for him to read it — intimating that the contents were known and understood. It was not read at that time, nor does it appear distinctly that it was ever read by the respondent at any time. It is also proved that after the marriage, on one occasion, the deceased asked the respondent if she did not wish she had the contract, and she replied it was not good for anything, unless he paid her the $500 he had agreed to. And in the summer of i860, the respondent stated to the deceased that he had agreed to give her the house and lot, and asked him why he did not do it; and he replied, that perhaps she should have the house he lived in, or to that effect. It thus appeared that he acquiesced in the state- ment made as to the contents of the contract, and did not deny that it contained the provisions claimed by her. The proof referred to shows that he kept it all the time in his own possession, or under his own control; and when called upon to fulfill his engagement, he failed to deny the statements as to the agreement actually made, and virtually admitted that they were correct. It is plain that the respondent understood the contract as con- taining the provisions stated by the deceased, and that the deceased understood that such was her belief as to its contents. He per- mitted her to act on this hypothesis, and while laboring under an entire mistake, without correcting it, and it does not rest with his heirs now to claim that it was otherwise than the deceased stated and the respondent understood at the time. She married him under such a belief, and he having knowledge that such was her under- standing of the agreement, those who represent him are estopped now from insisting that the contract was valid and should be enforced. For the reasons stated, the alleged contract was invalid and void, and the General Term very properly modified the decree of the sur- rogate by allowing the respondent a distributive share, as widow, in the estate of the deceased. No other question raised demands comment, and the judgment of the General Term should be affirmed, with costs. All concur, except Rapallo, J., absent. Judgment affirmed. FARLEY v. FARLEY. 91 Ky. 497. — 1891. Judge Bennett delivered the opinion of the court. The appellant, while a feme sole, executed to the appellee the notes, and the mortgage on her land to secure one of the notes, now in controversy. She and the appellee thereafter married each wife's ante-nuptial contracts with her husband. 85 other, and while they were husband and wife, and said notes not having been paid, the appellee brought suit on them, seeking a per- sonal judgment and foreclosure of said mortgage. The appellant interposed the defense that by her marriage with the appellee said debts were, in law, paid, or extinguished, which had the effect to cancel said mortgage. During the pendency of this suit the appellee obtained a divorce from the appellant, in which each party was restored to any property not disposed of at the com- mencement of the action, which such party might have obtained, directly or indirectly, from or through the other, etc. The lower court decided that the subsequent marriage, under the circumstances did not extinguish the said mortgage, and ordered the land sold to pay the mortgage debt. By the common law, marriage has the legal effect of paying or extinguishing the debt that the husband might owe the wife, or the wife the husband, at the time of the marriage. By that law the husband, by the marriage, became responsible for the debts due by the wife at the time, and became bound to provide for her comfort and maintenance during coverture, and, in return, all her personal estate, of whatever description, became absolutely his. If she, at the time of marriage, held a note on him, the note was, in law, paid; it became his. If he held a note on her, it, in law, was paid or extinguished by the marriage. If, at the time, she was indebted to him, say one thousand dollars, and possessed say one hundred thousand dollars, the law gave him said sum, and at the same time paid her debt to him. If she took one thousand dollars of this sum and paid the debt, she would take what already belonged to the husband by virtue of the marriage. Suppose she were to say to the husband, you got ten thousand dollars by me, which ought to pay this debt, would he be permitted to say that he got what the law gave him, and as she owned a tract of land which the law did not give him, except the rent and use, he would subject that to the payment of the debt ? Surely a court of equity would not allow this. Surely it would say to him, as the law gave him, upon the marriage, all the personal estate then owned or thereafter acquired by this woman, it also paid or extinguished her indebted- ness to him. It would say to him still more specifically, it is the right, without reference to the quantity received, to her personal estate and her earnings that pays or extinguishes her indebtedness to him. Now, this common-law rule prevails in this State, except as it is modified by statute, which modification consists in the wife's retain- ing the legal title to her real estate, and the husband's non-liability for the payment of any ante-nuptial debts of hers, except to the extent 86 HUSBAND AND WIFE. that he received personal estate from her by reason of the marriage. This non-liability is more favorable to him than was the common- law rule, which was intended to establish equality, in view of the fact that the statute allows her to retain the title to her real estate; but it does not have the effect not to pay any debt that she might owe him, because he is yet entitled to all her personal estate, time, labor and earnings, which should have the legal effect of paying or extinguishing her indebtedness to him. She could still say to him that the thousands of dollars that were once hers, and out of which she could have paid the debt, were now his, and her earnings, once hers, and out of which she could have paid the debt, were now his, and she, consequently, had nothing with which to pay. But he says, you have land, pay me out of that; but she says you control the rents and income from that land, and if I offer you that, you will tell me that you are entitled to that by law. Yes, of course, give me the title; you have that left. But, instead the common law says that it is the acquisition by the husband of this right, although never sub- stantially realized, that pays the wife's indebtedness to the husband, and the reason of the rule exists notwithstanding our statutory modifications. This common-law rule as to payment does not obtain where the ante-nuptial contract was not to be enforced during cover- ture, or where the wife, by either contract or the law, retains all her estate as a separate estate; then, in that case, the reason ceases, and equity will relieve against the rule. But such is not the case here; the modifications suggested do not change the essence of the reason, consequently the rule obtains and said indebtedness was, in law, paid. But it is said that the mortgage gave the appellee an equity which he could enforce after the marriage. Well, the mortgage did not convey to the appellee any equity except as that equity was sup- ported by the debt that the equitable conveyance was intended to secure ; and if such debt was thereafter paid in fact, or by operation of law, the lien or equity became eo instante discharged. Such lien subsists upon the debt that it secures; and when that debt is paid, or extinguished by either actual payment or payment by operation of law, the lien itself is thereby discharged. But it is said the divorce restored each party to all his property not disposed of before the commencement of the action as fully as if there had been no marriage. The answer to this proposition is, that the appellee's property in these notes was disposed of before the action was commenced. They were paid, or extinguished, by the marriage, and the divorce did not revive them. The judgment is reversed, with directions to dismiss the appellee's petition. WIFE'S POST-NUPTIAL CONTRACTS WITH HER HUSBAND. 87 Wifes Post-nuptial Contracts with her Husband. SPOONER v. SPOONER. 155 Mass. 52. — 1891. Appeal from a decree of the Probate Court dismissing the peti- tion of Susan G. Spooner, as administratrix of the estate of her late husband Walter Spooner, for a license to sell real estate for the pay- ment of debts. The case was heard by Knowlton, J., who reported it for the consideration of the full court, in substance as follows: It appeared that the appellant advanced from her separate estate to her husband in his lifetime the sum of $1,075, an d took in return therefor a note signed by her husband and payable to the order of Walter R. Spooner, and by him indorsed to the appellant in the life- time of the husband. The note was indorsed at the time when it was made, and after being indorsed was delivered to the appellant. It was never in the possession of the payee except for his indorse- ment, and was delivered to the appellant by the husband. The note and indorsement (except the signature of payee) was in the hand- writing of the husband. There was no indebtedness of the estate except said note, and if this note should be paid it is necessary to sell a part of the real estate, and the petition should be granted. Allen, J. It has often been held that a promissory note running directly from a husband to his wife, or vice versa, is void, and can- not be made valid by a transfer to a third person. Woodward v. Spurr, 141 Mass. 283, and cases there cited. But where a note given by a husband to a third person is valid in its inception, it does not become a nullity by being transferred to the wife, though she may not be able to maintain an action against him upon it in her own name. Thus, in Butler v. Ives, 139 Mass. 202, a wife borrowed money from her husband and made a note secured by mortgage therefor to a third person for her husband's benefit, and it was held that the note and mortgage were not extinguished by being subse- quently assigned to the husband, though he could not enforce them by proceedings at law in his own name, and that the right to enforce them revived when they were transferred by him to a third person. See, also, Degnan v. Farr, 126 Mass. 297. In each of these last two cases the original transaction was a loan of money between hus- band and wife, and in each a note and mortgage were given to a third person for the purpose of securing the repayment of the loan. In each case it was considered that the note was valid in its incep- tion, so that it might have been sued in the name of the payee for 88 HUSBAND AND WIFE. the lender's benefit. The circumstance that a third person was introduced as payee, merely for the purpose of avoiding the objec- tion that husband and wife cannot contract directly with each other, did not render the note invalid. The present case falls within the doctrine thus established. The payee might have maintained an ac- tion upon the note. The consideration was sufficient. Atlantic Bank v. Tavencr, 130 Mass. 407; Nichols v. Nichols, 136 Mass. 256. His title was, in substantial particulars, like what existed in Dcgnan v. Farr and Butler v. Ives, above cited. If Mrs. Spooner, after taking the note, had transferred it to a third person, such third person could have maintained an action upon it. Such transfer might be made now. But since her husband is dead, formal objection to pro- ceedings in her own name has ceased; the note is a valid indebted- ness against his estate, and she, as administratrix, may maintain her petition for license to sell real estate to raise money for its payment. Decree reversed. CAREY v. MACKEY. 82 Maine, 516. — 1890. On Report. This was an action of debt on the bond of the defendant, made and given to the plaintiff, then his wife, September 12, 1882, for her separate support. Besides a general count in the declaration for the penal sum of the bond, the plaintiff also declared for forty-five monthly payments of thirty dollars each. April 13, 1883, a divorce a vinculo with a decree for a gross sum of $690.00, as alimony, and the right to resume her maiden name, was granted to the plaintiff, by the court in Florida, where both parties had their domicile. Peters, C. J. The plaintiff declares on the instrument adduced below, as a penal bond, and also upon the covenants expressed in it: — " This agreement made this twelfth day of September, 1882, between Jonathan I. Mackey and Alicia C. Mackey, both of Florida, and residents of Jacksonville in said Florida, witnesseth that, whereas my wife, Alicia C. Mackey, has this day expressed her desire to me that a separation of relations of man and wife between ourselves might be effected, and for good reasons known to herself, be it known that I hereby consent to said separation, and, in con- sideration of my duty to her as her husband, I hereby agree to pay to her monthly, through the Hon. M. A. McLain of Jacksonville WIFE'S POST-NUPTIAL CONTRACTS WITH HER HUSBAND. 89 aforesaid, the sum of thirty dollars per month, on the first day of each month, the first installment or payment being and to become due November 1, 1882. And I hereby bind myself to the well and true payment of thirty dollars aforesaid monthly, so long as she shall maintain good behavior and shall (not) have remarried, and this I bind myself to do under a penalty of five thousand dollars, to be re- covered by her in any court of law by attachment upon my property and of myself, which sum of five thousand dollars aforesaid I hereby agree shall be considered a forfeiture upon my part to her. And this thirty dollars per month is in addition to the one hundred and fifty dollars which I have already paid her at the making of this agreement. And this I do freely and understandingly. "Witness my hand and seal this 12th September, 1882. J. I. MACKEY, (seal)." The instrument was acknowledged before H. M. Sylvester, a notary public, and witnessed by him. The plaintiff cannot recover on both forms of declaration. She elects to recover the penal sum. We have no doubt the instru- ment declared on is a penal bond. It contains all the elements of one, though perhaps not expertly put together. " If I by deed, covenant or promise to do a thing, and then say to perform which promise I bind myself in twenty pounds, this is a good obligation in law." Xo set form of words is necessary, as see numerous illustrations in Bacon's and Dane's Abridgements; Title, Obligation. We are of opinion that the five thousand dollars are a penalty and not liquidated damages. Passing the points made on the pleadings, an important question arises whether an agreement for separate support is valid in this State. We do not see why not. It is said in argument that there has never been a judicial decision in the State touching the ques- tion. That indicates that the danger of a frequency of such cases must be small indeed. Certainly such an agreement comes within the spirit of our late statute which provided for a divorce from bed and board, the mari- tal tie remaining. There never has been any judicial expression in this State against an agreement for separate support. The doctrine is upheld in an early Massachusetts case when this State was a part of that commonwealth, and the precedent is, therefore, as binding here as it is there. In Page v. Trufant, 2 Mass. 159, decided in 1806. it was held that " a bond from the husband to the father of the wife for her maintenance, after a voluntary separation, is a valid contract." 90 HUSBAND AND WIFE. According to the practice of that day, each judge sitting expressed his opinion on the question, and all favored the doctrine. Parsons, C. J., closed the discussion in these words: " It in fact appears on the record that the consideration was legal and meritorious, as it was made to secure a separate maintenance for the wife, who sepa- rated from her husband for their mutual comfort, to avoid the effect of jealousies and animosities that existed between them." In Foxv. Davis, 113 Mass. 255, the doctrine is fully recognized, and was applied in that case. Mr. Bishop, in 1 Bish. Mar. & Div. (6th ed.), book 5, ch. 39, enumerates the states, citing their cases, where the doctrine is either allowed or disallowed; and it appears to have been accepted by most of the states. In England it is estab- lished by act of Parliament. The condition on which it rests is that separation has already taken place, or that the agreement is made in contemplation of an immediate separation which takes place as contemplated. The only objection to such contracts is the encouragement which may be afforded for married parties to separate from each other. We think that amounts to little or nothing under our liberal divorce system. Parties greatly prefer divorce and alimony to mere separa- tion. There may be a distinction to be observed. Some contracts of separation might offend public policy, and others not. Certainly there are cases where a wife would be justified in separating from her husband, and asking a support from him notwithstanding the separation. There was undoubtedly good cause for separation in the present case. The evidence in the divorce case, to be alluded to hereinafter, which is a part of the record of this case, shows that the separation was caused by cruelties inflicted by him upon her. He had frequently choked her severely, and habitually abused her in different ways. She proves that she has been a person of good behavior since separation, as the contract requires of her, and that she has not married again. ******** It is contended for the defendant that the agreement for separate support was terminated by the divorce obtained by the plaintiff in a court in Florida in 1883. The agreement does not provide for its rescission or termination upon the wife's divorce. A failure of good behavior or re-marriage are the only causes provided for its termi- nation. The promised support would be just as much needed after divorce as before. There is no agreement of parties in the provi- sions of the divorce, nor was there any in the negotiations preced- ing divorce, that the contract should be annulled thereby, although wife's post-nuptial contracts with her husband. 91 the defendant attempted to prove such an understanding. The court could have imposed such condition, a not uncommon thing, but failed to do so. Nor does the decree of divorce, of its own force, have the effect of terminating the prior agreement for sepa- rate support. On this point the doctrine is stated by Mr. Bishop, and the authorities fully cited. 1 Mar. & Div. (6th ed.), sec. 637; 2 same, sees. 55, 717-722, 741. The counsel for defendant argue at great length that an action cannot be maintained on the agreement because not of legal form in all respects, very properly contending that all contracts made be- tween husband and wife do not become valid merely because the marital tie has been sundered by a decree of divorce. But all con- tracts of the kind which equity would uphold before divorce, the law recognizes after divorce. This agreement is substantially a legal agreement, and at all events a good equitable agreement. Had the promise in it been made to this plaintiff's agent as her trustee, it would have been a perfectly formal instrument at law. But the promise is to her, though the delivery of the money was to be to the agent for her. Equity would have readily supplied formality. In the divorce proceedings the plaintiff received allowances towards her support of $690.00, the terms of divorce having been arranged by the counsel of the parties. Here, then, was a decree of court for support, and also an agreement of parties for the same purpose. It does not clearly appear what was in the minds of the parties about a double allowance, but from what was said and done in the negotiation, and because there would be much apparent jus- tice in thus interpreting the transaction, we think we are justified in concluding that it was the tacit understanding of the parties that the allowances, in the divorce suit, should be a credit to that extent upon the amounts payable by the contract. A/bee v. Wyman, 10 Gray, 222. The result must be that judgment is to be entered for the penal sum of the bond, execution to issue for the sum due on the bond less the credit of six hundred and ninety dollars. Defendant defaulted for the penal sum. Damages to be assessed at mstprius. Walton, Virgin, Libbey, Foster and Haskell, JJ., concurred. Q2 HUSBAND AND WIFE. Wife s Chattels Personal. CAFFEY v. KELLEY. Busbee's Eq. (N. C.) 48. — 1852. James McNeely died intestate in the early part of the year 1849, leaving surviving him a widow, the feme defendant, since intermar- ried with the other defendant, and two children, the feme plaintiffs. His widow administered on his estate, and this bill is filed for a set- tlement of her accounts as administratrix. At the time of the defendant Isabella's marriage with her intes- tate she owned an undivided half of two slaves (Sarah, aged about five years, and Thompson, about five months), as a tenant in com- mon with her brother, William Mitchell, which slaves they had acquired by gift from their father; and she and her then husband went to live with her mother, Mrs. Mitchell, in whose possession were the said slaves, as well also a quantity of furniture belonging to the defendant Isabella. Whilst living with Mrs. Mitchell, it does not appear that the intestate ever exercised any positive acts of ownership over the said slaves, nor that he set up any claim to them by virtue of his marriage; but they were simply understood in the family to be the property of the said Isabella and William as tenants in common. Nor does it appear that he asserted any ownership or control over the furniture there, which was his wife's. The intes- tate died within about three months after his marriage — having a short time before his death removed to a house of his own; and on removing, he did not carry with him the said slaves, or either of them, nor the said furniture. The bill alleges that the defendant's intestate, by virtue of his marriage, and acts of ownership exercised by him over the said property, acquired title thereto; and prays that the defendants may be held to account for the same as part of his estate, which had not been done by them in their inventory and accounts rendered. Battle, J. There can be no doubt that the negro girl Sarah and the boy Thompson became the property of the defendant Isabella's intestate by his intermarriage with her. They were at the house of the said defendant's mother, with whom she lived at the time of her marriage, were not claimed adversely by her mother or any other person, and, therefore, became the property of her husband jure maritOy whether he ever took them home or not. The two cases of Pettijohn v. Beasiy, 4 Dev. Rep. 512, and Stephens v. Doak, 2 Ire. Eq. Rep. 348, cited by the plaintiff's counsel, show that the wife's being wife's paraphernalia. 93 tenant in common with another person, of the said slaves, made no difference. The household furniture which the said Isabella had at her mother's, at the time of her said marriage, became also the property of her husband, for which she, as his administratrix, is bound to account as part of his estate. But the notes which she held, payable to herself, having never been collected by her husband, survived to her; and it is now admitted by the plaintiff's counsel that she is not bound to account for them. The plaintiffs are entitled to an account from the defendants of the administration of the estate of the intestate by the defendant Isabella, for which a reference must be made to the clerk, if the par- ties desire it. Per Curiam. Decreed accordingly. Wifes Paraphernalia. HOWARD v. MENIFEE. 5 Pike (Ark.), 668.— 1845. Trover. Mary E. Menifee, widow, sued Howard, Mason, and Menifee, administrators of Nimrod Menifee, deceased. The decla- ration contained but one count, for a gold watch, and one Durham cow and calf. The following facts are agreed upon by the parties, and submitted to the court sitting as a jury — to wit: That the plaintiff and the deceased were married in the spring of 1840; and before marriage she was possessed in her own right of a gold watch, worth $150. After marriage, at request cf her husband, she gave away the watch to her sister, and received therefor, from her hus- band, the watch in question, which she received and retained as part of her paraphernalia until after his decease, in January, 1842. That after her marriage she received as a present the Durham cow, to be held as her own property. The cow brought forth the aforesaid calf, in the lifetime of the deceased, and both remained in her pos- session as her own property, until after the husband's death. The cow was taken possession of by the plaintiff in Kentucky. After death of husband, administration granted defendants in due form of law in said county; who proceeded to administer, and took posses- sion of said property before suit brought — demand made and refusal. That the watch is wDrth $150 ; the cow $200; and the calf $100. And the defendant still refuses to give them up to her. That at the time deceased gave the watch, he was possessed of 94 HUSBAND AND WIFE. property worth $25,000. That when the defendants took the goods, it was uncertain whether the estate was solvent or nut. That the plaintiff was possessed of the goods sued for when taken by defendants, and she was in the possession, and used the watch from its first coming to her until taken by defendants. On these facts the court found for the widow. Sebastian, J. * * * By the common law, the husband be- comes entitled absolutely to all the wife's personal estate, by mar- riage, and acquired the absolute dominion and right of disposing of it. This was the consequence of the destruction of the separate legal existence of the wife by marriage, by which her rights, capa- city, and will was henceforth represented by her husband. His right was the same to any acquisitions of the wife after marriage, which enured to his benefit, and to which his assent was presumed. Unquestionably therefore, the property sued for must be considered at law as belonging to the husband in his lifetime. There is, how- ever, a qualification of the power of the husband over such property of his wife as is denominated her paraphernalia. This was some- thing over and in addition to dower at common law, or the widow's " reasonable part " of the personal estate of the husband, and con- sisted of such jewels, articles of luxury, or of personal ornament and decoration as were used by the wife and suitable to her condi- tion. Though the husband could dispose of them in his lifetime, he could not alienate them at his death. 1 Peere Williams, 730. The right of the widow to that portion of the estate was absolute and exclusive, except as to creditors. She took it as against the heir or legatee, and in the order of paying the debts of the estate, the per- sonal and then the real estate was applied. For this purpose she might have the assets marshaled in a court of equity, in exoneration of her paraphernalia, or to reimburse the value when it had been subjected. Grulsdn v. Corbeti, 3 Atkins, 370; Tipping v. Tipping 1 Peere Williams, 729; 2 Peere WiTiams, 542. From these and many other cases it is evident that the widow's paraphernalia could be subjected by the creditors and that if subjected, equity gave her a claim of reimbursement from the personalty and real estate. The right of the administrators to subject the gold watch as assets for the payment of debts cannot be questioned. Considering the facts of the case, it was certainly paraphernalia, and this question is one of which the court is to judge. A watch worn by the widow has been so expressly considered. 2 Eq. Cas. Abr. 156. Her remedy is in equity for the value, should there be assets after the payment of the debts, and no action can be maintained in the present form. Her claim for the value of the other property mentioned rests wife's choses in action. 95 upon a different ground. Although it legally vested in the husband, yet, as it was the gift to the wife from a stranger, it is presumed to have been for her separate use, and equity regards, it as her separate property and upholds the gift by making the husband trustee. In this case it is clear, from well settled principles, that the property passed to the administrator, clothed with the trust, and he is liable in equity for the value. An action at law in this form cannot be main- tained. The legal title would protect him from damages for a con- version, and as the administrator took, not for the creditors, but for the widow, he is to be considered as a trustee for her, and liable for the value of the property converted, when the proper remedy shall be resorted to. Judgment reversed. 1 Wifes Choses in Action. BOOZER v. ADDISON. 2 Rich. Eq. (S. C.) 273. — 1846. A note was given to Mrs. Addison, during coverture, for money, the earnings of a school kept by her. The note was delivered to the wife at its execution and remained in her possession till the death of the husband, and ever afterwards, until it was settled and taken up by the obligors. This settlement took place the 8th of March, 1842, after administration to the hus- band had been granted to the plaintiff. The settlement was entirely between the wife and Meetze and Bouknight, two of the makers of the note, the administrator having nothing to do with it; and it was effected by these obligors receiving and giving up to Mrs. Addison sundry notes and accounts, which the said Meetze alone, and the said Meetze and Bouknight, as partners, held against her deceased husband; to which were added the amount of a note given by said deceased to Mrs. Arthur; an account against him in favor of Meetze, Harmon & Co., and sundry small accounts against Mrs. Addison herself: the whole amounting to $1,891.13, at the date of the settlement. These were given for the sealed note held by Mrs. Addison. 1 " If the husband deliver to his wife a piece of cloth to make a garment, and dies, albeit it was not made into a garment in the life of the husband, yet the wife shall have it, and not the executor, inasmuch as it was delivered to her to that intent. But against the debtee of the husband the wife shall have no more apparel than is convenient. Mich. 40 & 41 Eliz. HarweVs Case." — Baron and Feme, 1738, p. 79. 96 HUSBAND AND WIFE. It appears from the accounts of the administrator of Mr. Addi- son, that even if this sealed note be regarded as parcel of his intes- tate's estate, the assets will fall far short of satisfying the demands against it; and that after applying them to the bond debts, very little, if anything, will remain for the simple contract creditors. Under these circumstances, the creditors at large, and especially the bond creditors of the intestate (all being before the court as parties), have advanced the claim that the sealed note, held and given up by Mrs. Addison, as already stated, was parcel of her husband's estate, and should be added to the assets ; and they contend that in the settlement, Meetze and Bouknight have received a greater amount, upon the demands which they held on the deceased, than they were entitled to receive in a regular court of administration. Appeal from the decree of the chancellor. Curia per Johnston, Ch. The reasoning of the decree rests en tirely upon the assumption that a bond or sealed note given to a woman during coverture is, at law, the unqualified property of her husband, and if this assumption is sustainable, I do not perceive any error in the conclusions which the decree draws from it. I assume this position with the less hesitation, because it seemed to be conceded in the argument, and because it had been conceded in Herbemont v. Hcrbemont, by eminent counsel, whom I endeavored to draw into the discussion of it. But it has been discussed here ; and I am satisfied that the posi- tion, so far from being sustained, is contradicted by the best authorities. The result of the examination is, that the husband's right of property is qualified, and dependent altogether upon the steps he may take to assert it. The right of the husband to the choses of the wife may be deter- mined by considering the remedies which the law gives him in rela- tion to them; and the incidents which pertain to the remedies he may adopt. To the choses belonging to the wife before the marriage, the hus- band can lay no claim in his own name, or in his own right; but must join the wife in any action he may bring for reducing them into his possession. If he die before judgment, the chose survives to the wife; or if he obtain judgment and die before it is satisfied, the judgment enures to the wife as survivor. Upon choses accruing to the wife during coverture, the husband may sue alone, or he may concede to the wife an interest in them, and join her in the action; and if he take no exclusive claim by suing in his own name, or join his wife in the action, but die before WIFE'S CHOSES IN ACTION. 97 judgment, or after judgment but before satisfaction, the chose, or the judgment, as the case may be, survives to the wife, precisely as in the case of choses accrued to her before the marriage. The only difference between ante-nuptial and post-nuptial choses, therefore, is, that the husband must join the wife in the action for the former, but has an option whether to join her or sue alone for the latter. If he has not reduced them before his death, they both equally go to the wife by survivorship. In this case, Mr. Addison neither sued in the one form nor the other; nor made any claim whatever to the sealed note, the subject of the decree; — and the consequence (if the positions I have stated be true) is, that upon his death it belonged, in law, absolutely to his wife. For the truth of the position I might refer to two elementary writers, in common use. Chitty, speaking of choses accruing after the coverture, says (1 Chit. PI. 18): " Where the wife can be con- sidered as the meritorious cause of action (as if a bond or other contract under seal be made to her separately, or with her husband) ; or if, in the case of her personal labour, there be an express promise to her, or to her and her husband, she may join with the husband, or he may sue alone; and it has been held, that she may be joined in all cases, upon an express promise to her." "The effect," says he (id. 20) "of joining the wife in an action, when the husband might sue alone, is, that if the husband die whilst it is pending, or after judgment, and before it is satisfied, the interest in the cause of action will survive to the wife, and not to the executor of the husband; though, if he sued alone, she would have had no interest." Mr. Stephens (1 N. P. 744) lays down the same positions. Premising that where the husband and wife join in an action, founded upon the services, etc., of the wife, and there is no express promise in the case, it must appear in the declaration that the ser- vices were rendered by her, so as to show that she is the meritorious cause of the suit; but that if the action is founded on a note or bond to her, or upon any other instrument importing consideration, no such averment is necessary. 1 H. Bl. 144; 2 M. & S. 393. I pro- ceed to show from a few cases, promiscuously taken from both the law and equity jurisdictions, that the elementary writers already quoted are borne out in the propositions laid down by them. It is true that there are a few cases (Bunb. 188; 2 Eq. Ab. 1; 2 Bl. R. 1236) to the contrary, but the current of cases, especially those of later dates, are with them. \Here follows a statement of the following cases : Brashford v. Buckingham, Cro. Jac. 77; Philliskirk v. [Domestic Relations — 7.] 98 HUSBAND AND WIFE. Pluckwcll, 2 M. & S. 393; Oglander v. Baston, 1 Ver. 396; Schoon- maker v. Elmendorf, 10 Johns. R. 49; Coppin v. , 2 P. Wms. 496; Nash v. iVW/, 2 Mad. R. 411, first Am. ed.] It seems to me that these cases are sufficient to settle the question as to the right at law. Still it may be said, that though the doctrine be as stated, as be- tween the husband, or his representatives, and the wife, it must be otherwise as between the latter and the creditors of the former. That it may lead to fraud: — for if a bond or note, executed in the name of the wife, be allowed to survive to her, it will be easy for the husband, when the consideration really proceeds from him, and not from the wife, to take the obligation in her name, and thus secure a benefit to her at the expense of his creditors. But there is no such danger. If the chose arises in truth, as in this instance, from the wife as the meritorious cause, there is no fraud in allowing her the benefit of it; and if it arises from the funds or property of the hus- band, the proof of that fact will demonstrate the fraud and prevent its being carried into effect. It is ordered, that the decree be reversed, and the bill pertaining to this matter, as against the defendants, Meetze, Bouknight and Scott, dismissed. The costs to be paid out of the estate of Mr. Addison before distribution. Johnston and Dunkin, CC, concurred. CAPLINGER v. SULLIVAN. 2 Humph. (Tenn.) 548. — 1841. Reese, J. This is an action of detinue for slaves. The property in question was bequeathed by the last will and testament of Boling Felts to his wife, for life, and after her death to Ann Sullivan, the plaintiff in this suit, then the wife of William Sullivan, and the said William was appointed executor of the will. He duly took upon himself that office, and in 1819, purchased of Mary Felts, testator's widow, the property in question, for the sum of one hundred dollars per annum, to be paid to her during her life. In 1830, Mary Felts acknowledged in writing her reception of a sum in gross, from William Sullivan, in satisfaction of her annuity. Subsequently, in the same year, William Sullivan conveyed the slaves, for a valuable consideration, to Caplinger, the defendant, and put him in possession thereof, he himself having been pos- sessed of them from the time of his purchase in 1819. William Sullivan died in 1835. Mary Felts, the owner of the slaves for life, WIFE S CHOSES IN ACTION. 99 and Ann Sullivan, the wife of William, to whom they were limited in remainder, surviving. Mary Felts died in 1838. These facts, in the Circuit Court, were found by the jury in a special verdict, and judgment thereon was pronounced by his honor the circuit judge in favor of Ann Sullivan, the plaintiff, and the de- fendant, Caplinger, has appealed in error to this court. Justice Story, in his Commentaries on Equity, paragraph 1413, states it as a principle, that, " no assignment by the husband, of reversionary choses in action, or other reversionary equitable inter- ests of the wife, even with her consent and joining in the assign- ment, will exclude her rights of survivorship." The assignment, he adds, " is not, and cannot from the nature of the thing, amount to a reduction into possession of such reversionary interests." The general principle thus laid down we find to be abundantly sustained by authority, and particularly by the leading cases on the subject, Purdew v. jfackson, 1 Russ. 1, determined by Sir Thomas Plummer, Master of the Rolls, and the case of Honner v. Morton, 3 Russ. 65, determined by Lord Chancellor Lyndhurst, 15th April, 1827. The point settled in the last case is, that where husband and wife assign to a purchaser, for valuable consideration, a share of an ascer- tained fund, in which the wife has a vested interest in remainder, expectant on the death of a tenant for life, and both the wife and tenant for life outlive the husband the wife is entitled, by right of survivorship, to claim the whole of the shares of the fund, against such particular assignee for valuable consideration. The Lord Chancellor refers to the principal cases relied on, on either side, and particularly to the case before Sir Thomas Plummer, and con- cludes, after considering the question in all its bearings, and the authorities and principles on the one side, and on the other, that the judgment of the Master of the Rolls in Pun/no v. Jackson was right, and that the husband dying while the wife's interests con- tinue reversionary, had no power to make an assignment of property of this description, which shall be valid, against the wife's surviving. But it is urged on behalf of the defendant, in this case, that the husband did not die while the wife's interests in the property con- tinued reversionary; for it is said that the reversionary character of the interest was terminated by the purchase on the part of the husband from the tenant for life. But this we think is not so. For if after this purchase, the husband had died without assignment, can it be doubted, that the personal representative of the husband would have been entitled, during the existence of the tenant for life, to the property in question, and after that that the wife would have been entitled by survivorship. IOO HUSBAND AND WIFE. The wife had no interest in the husband's purchase, he stood in the place of tenant for life. The tenancy for life still continued, and the reversionary interest unaffected by such purchase, could not commence in possession till the life estate terminated. The hus- band possessed the slaves, but he possessed them as purchaser, not as husband, and his title and possession were of, and commensu- rate with, the life estate, and that only. Here was no merger of estates. The life estate belonged to the husband solely and abso- lutely as purchaser; the reversionary interest or remainder, to husband and wife, in right of the wife, and liable to become his absolutely by survivorship. If the husband, having assigned, had continued to live till the lifetime estate had terminated, then, in- deed, as a court of chancery views such assignments as an agree- ment to assign when in his power and considers that also as done which ought to have been done, the assignee, for a valuable considera- tion, would, in equity, have been entitled to the property. We have been referred by defendant's counsel to the case of Pinckardv. Smith and Wife, Littell's Select Cases, 331, as bearing on this question. The court, in that case, seemed to be of opinion that a vested remainder in a slave, occurring to the wife during coverture, so far vested in the husband, as that he would be en- titled to recover the same, without administration on the wife's estate. But they also state it as their opinion that it does not so vest as to defeat the wife of her right by survivorship. The case, whether properly determined or not, can, therefore, be no authority bearing upon the case at the bar. Upon the whole, we are of opinion, that the Circuit Court pro- nounced the proper judgment upon the special verdict, and we, therefore, affirm that judgment. HART v. LEETE. 104 Mo. 315. — 1891. Black, J. The piaintiff, as purchaser of real estate at an execu- tion sale, brought this suit to set aside a deed from defendant, James M. Leete to defendant Simmons, conveying the property in dispute to Simmons in trust for the use of the wife of said Leete, on the ground that the deed was made in fraud of creditors. The record is lengthy, and it is deemed advisable to here state the case in its out- line, leaving the details of the evidence to be narrated in connection with the question to which it relates. Tames Harrison died leaving a large estate, and, by his will, WIFE'S CHOSES IN ACTION. IOI which was probated in 1870, devised one-fifth of his estate to his daughter, Cordelia. On the twenty-eighth of June, 1871, she mar- ried the defendant, James M. Leete, who was a physician, having property of no greater value than $3,000, and an income of not exceeding $1,000 per annum. Edwin Harrison was executor of the will, and, as such, paid over to Dr. Leete, from time to time, from 187 1 to 1884, not less than $250,000. In addition to this he turned over to Mrs. Leete, on the 29th of September, 1876, stocks and bonds amounting, face value, to $263,740. Dr. Leete purchased the property now in question in September, 1873, and took the title in his own name. He paid for it $12,000, one-fifth in cash and the residue by his individual notes due in one, two, three and four years, and secured the same by a deed of trust on the property. The cash payment was made by a cheque of the executor payable to Dr. Leete and charged to Mrs. Leete, on account of her distributive share in her father's estate. The subsequent pay- ments were made from the funds received from the executor. Dr. Leete built a residence upon the property at a cost of $40,000, and paid for the same from August, 1875, to August, 1876, by cheques drawn on funds received by him from the executor on ac- count of his wife's inheritance. He was a stockholder and officer of the Harrison Wire Company, and he endorsed the paper of that company to a large amount. On the 12th of December, 1883, the Harrison Wire Company made its note for $25,000 due in six months, payable to Dr. Leete, which was endorsed by him. Augustus B. Hart purchased the note, and when it became due it was renewed for five days. It remained unpaid on the 9th of December, 1884, at which time Dr. Leete owed other large sums of money, and he and the Harrison W T ire Company were then insolvent. On that day he made the deed now in question to Simmons, conveying the property in suit to Simmons in trust for Mrs. Leete. The deed professes on its face to be made in consideration of $5. and for the further con- sideration that the money which paid for the property and the improvements " was money, income, increase or profits of personal property belonging to " Mrs. Leete. Augustus B. Hart recovered judgment on the note against Leete in January, 1885, under which the property was sold, and the plain- tiff, Oliver A. Hart, became the purchaser in March of the same year. The defendants caused notice to be promulgated at the sheriff's sale to the effect that the property belonged to Mrs. Cor- delia Leete. The case was heard by a referee, who made report to the effect that the deed should be set aside, because made in fraud of credit- 102 HUSBAND AND WIFE. ors to the extent of six hundred and twenty-four thousandths of the whole title. Numerous exceptions were filed to the report by both sides, but they were all overruled, and the report confirmed, and both sides appealed to this court. It becomes necessary to determine whether Dr. Leete became the owner of the money received by him prior to March 25th, 1875, and this depends upon the question whether he reduced the same to his possession. It is often said that by the common law the marriage vests abso- lute ly in the husband all articles of personal property then owned or thereafter acquired by the wife; but under the influence of equity rules it is well settled that the husband may waive his right to his wife's personal property, and permit her to retain the same free from any claim on his part. Botts v. Gooc/i, 97 Mo. 88, and cases cited. But the wife's choses in action stand on still a different foot- ing. They do not in any case vest in the husband by virtue of the marriage alone; but he has the right and power to reduce them to his possession, and when this is done, and not before, he becomes the owner of them. A legacy or a distributive share accruing to the wife is a chose in action. Leakey v. Maupin, 10 Mo. 368; 2 Kent (13th ed.), 135. As a general rule the receipt by the husband of the money due upon the wife's chose in action will constitute a reduc- tion to his possession. 1 Bishop on Married Women, sec. 114. But he may collect and invest the money for her, and if he receives the money for her and promise to account to her or her trustee therefor, she may claim the fund as her own, even as against his creditors; for an appropriation so made would not amount to an appropriation to his own use. Terry v. Wilson, 63 Mo. 493. While there is some diversity of opinion concerning the intent of the hus- band, the better view, according to Bishop, is that the mere receiv- ing, by the husband, of the wife's property will not be such a reduc- tion of it to his possession as will affect the wife's survivorship, or her equity to a settlement. To have that effect he must receive it solely in the exercise of his marital right, and for the purpose of appropriating it to his own use. Bishop on Married Women, sec. 119. When the husband collects the money due upon his wife's chose in action, not as agent or trustee, but for the purpose of de- voting it to his own use, there can be no doubt but this constitutes a reduction to his possession, and the money then becomes his own and liable for his debts. Now the principal claim on the part of the defendant is that Dr. Leete, in collecting these moneys, and in investing the same, acted wife's choses in action. 103 for and as the agent of his wife, and hence the money at all times continued to be her property. It appears he received various amounts of money from the executor during what is called each settlement year, and at the close of each year, when it became neces- sary for the executor to make settlement with the probate court, these various payments were consolidated, and he and his wife joined in one receipt to the executor. As to the disposition of the moneys, the referee made the following findings, which are well supported by the evidence: "Upon the receipt of these moneys Dr. Leete apparently used them as if they were his own. Some he used for personal expenses and the support of his family. He invested portions of them on his own account, or name, in securities. Collected and used the earnings and sold the securities and used the proceeds. He invested some of these moneys in various busi- ness companies, in his own name, and in some instances thus lost them. If the moneys were idle he kept them deposited in bank, in his own name, and he purchased the land here in question in his own name, and used some of these moneys towards paying for it and erecting the dwelling thereon. He did nothing in the name of his wife, nor had he any agreement with her as to the use of the moneys, but continued his operations in much the manner indicated, until the period and time he conveyed this property to his wife, as trustee, a period of ten or eleven years." It is very true Dr. Leete testified that he received the moneys and invested them as the agent of his wife, and that he never in- tended to make them his own property, and this evidence must be considered with the other evidence in the case. Still the uncon- tradicted evidence is that he collected the moneys, made no report to his wife, and was asked to make none; kept no separate account of the funds he thus received, purchased stock in various corpora- tions in his own name, and had a financial standing in the commu- nity where he resided. AVe have read and re-read the evidence, and we do not find a single circumstance to support the assertion that he acted for and as the agent of his wife. The long series of acts show, and they show conclusively, that he received the funds and appropriated them by virtue of his marital right, and the claim now made that he was all the while acting as the agent and trustee of his wife must be an afterthought. That he reduced the $117,000 to his own use is too clear to admit of any doubt. The property in question belongs to Dr. Leete to the extent that the land and improvements were paid for out of the moneys so appropriated to his own use. ******** 104 HUSBAND AND WIFE. Wife's Chattels Real. RILEY'S ADMINISTRATOR v. RILEY. 19 N. J. Eq. 229. — 1868. The Chancellor. The complainant, as administrator of the estate of Ann Riley, calls upon the defendant to account for the rents of certain leasehold property in Jersey City, held by Ann Riley at her death, and which the defendant has received; he claims to have received them in his own right, and that they are legally his own, by a bequest in the will of Miles Riley, the husband of Ann. Ann Riley became entitled to the leasehold estate by the will of her former husband, James Cummings, who bequeathed to her one- third of it, and a right of support out of the other two-thirds. After Cummings' death she was married to Miles Riley, who died in her lifetime, without having in any way aliened or disposed of the lease- hold estate, but by his will gave it to his brother Owen Riley, the defendant. The defendant claims that Miles Riley in his lifetime had erected buildings upon this property, and collected the rents, and by this he had shown his intention to appropriate this leasehold, which, as a chattel real of his wife, he had a right to reduce into possession and appropriate. The evidence shows that in the life of Miles Riley, and after his marriage with Ann Cummings, buildings were erected on the premises; but the clear weight of evidence is, that they were erected by his wife, and paid for out of the rents of the whole premises, which the executors of Cummings permitted her to receive and col- lect for that purpose. Miles Riley appears to have aided by per- forming some work in the erection of the buildings, and to have contributed a few dollars towards the erection. The only question that arises is, whether these leasehold premises were disposed of, or appropriated by Miles Riley in his lifetime, so as to vest the property in him, and take away the right of his wife after his death. Miles Riley died in 1848, and this question must be decided by the law as it stood then. By that law, the personal property of a woman, upon her marriage, vested in her husband; her goods and chattels absolutely; he had the right to the posses- sion of her choses in action, and of her chattels real, and could at any time dispose of, collect, or sell them, and by this the proceeds of them became his absolutely; but if he did not reduce them to possession by disposing of them, or some equivalent act, they sur- wife's real property in general. 105 vived to her, and would not pass by his will, which did not take effect until his death, when the title had become vested in her by the survivorship. Taking possession, collecting the rents, interest or dividends has never been held to be a disposition of the property, or a reduc- tion into possession, so as to take away the wife's right of survivor- ship. Nor has it ever been held that the erection of buildings by the husband on the leasehold lands of the wife was such disposition of them as to take away her right. An actual disposition by sale, lease or mortgage, or contract for such object, has always been required to take away the wife's right by survivorship. A mortgage or a sale of part, or a lease of part, or for a less term only bars the wife pro tanto ; her right of survivorship remains in the equity of redemption, and the residue of the premises or term. In this case no interest in the premises passed by the will of Miles Riley; the whole survived to Ann Riley, and her administrator is entitled to the fund. Wifes Real Property in General. BABB v. PERLEY. 1 Me. 6. — 1820. This was an action of trespass on the case for an injury done to the interest of the wife, by cutting down and carrying away sundry trees standing on land of which the plaintiffs alleged themselves to be seized in right of the wife. At the trial of this action before Wilde, J., at the last October term in this county, it was admitted by the defendant that the plaintiffs were seized as alleged in their writ, until he, being a judgment creditor of the husband, extended an execution in his own favor on the locus in quo, as the estate of the husband; and it appeared that this extent was made with the for- malities of law. After the extent, the defendant cut down and carried away, and sold about fifty cords of wood growing on the lot in question. Upon this evidence the judge instructed the jury that by virtue of the extent of the execution the defendant acquired all the title of the husband to the locus in quo, and that the cutting and selling of the wood was fully justified; and a verdict was there- upon returned for the defendant, subject to the opinion of the court upon the correctness of those instructions. Mellex, C. J. The facts in this case present some questions, respecting which judges and counselors have taken different views. 106 HUSBAND AND WIFE. They appear somewhat novel and we do not find that they have received any express judicial decision. We have examined the cause with much attention, and after some vibration of opinion have at length arrived at a result with which we are all satisfied. The facts reported by the judge who sat in the trial of the cause led the counsel, in the argument, to the consideration of two ques- tions; and it may be convenient for us to pursue the same course. The first inquiry is, " What were the rights and liabilities of Babb in virtue of his acquiring a freehold estate in right of his wife in the land in question, and in consequence of his destroying or selling and disposing of the wood or timber growing on the land ? " The second inquiry is, " What are the rights and liabilities of Per- ley, as assignee of said Babb and owner of his former interest in the land, in virtue of his ownership and consequent upon his destroy- ing or selling and disposing of said wood and timber ? " With respect to the first question, it may now be observed that the land on which the trees were cut by Perley is admitted to be a wood lot, uncultivated, and in a state of nature. When a man marries a woman who is seized in fee of lands, he thereby gains a freehold in her right. He acquires a life estate. It will be an estate for the life of the wife only — (unless he be tenant by the curtesy) in case he should survive her; or an estate for his own life, in case she should survive him; because the law presumes that the coverture will continue until the death of one of the par- ties. " He does not become, by the marriage, absolute proprie- tor of the inheritance; but as the governor of the family, is so far the master of it, as to receive the profits of it during her life." Co. Litt. 351; 2 Bl. Com. 433; Barber v. Root, 10 Mass. 261. These profits — this usufruct of the wife's lands, the husband may dispose of according to his pleasure, without or against her consent. For any injury to the annual profits, or for taking away the emble- ments, the husband may maintain an action against the wrongdoer, in his own name, without joining the wife. But for an injury to the inheritance, as for cutting down the timber growing on the wife's land, he cannot maintain such action without joining the wife; for the damages will survive to her. 3 Lev. 403; Vera. 82; Reeves, Dom. Rel. 130, 133. These cases mark the distinction between the rights of the hus- band and those of the wife in relation to the lands of which they are seized in her right. If, then, the husband has a right only to the usufruct or profits of his wife's lands, the question is, what were the rights which Babb had in the land above mentioned, and what con- trol over it ? Could this land yield any profits, according to the WIFE S REAL PROPERTY IN GENERAL. I07 legal signification of the term ? Some light may be thrown upon this point by considering the principles of the decision in the case of Conner v. Skeppard, 15 Mass. 164. In this case the court decided that a widow could not by law be endowed by lands in a wild and uncultivated state ; and the reason assigned by the court is, that " of a lot of wild land, unconnected with a cultivated farm, there are no rents and profits. ' ' Again they say, ' ' In many instances the in- heritance would be prejudiced without any actual advantage to the widow to whom the dower might be assigned. For, according to the principles of the common law, her estate would be forfeited if she were to cut down any trees valuable as timber. It would seem, too, that the mere change of the property from wilderness to arable land, or pasture, might be considered as waste." " The very clearing of the land — would be actually, as well as technically, waste of the inheritance." In the case of Sargeant et al. v. Towne, 10 Mass. 303, the court determined that a devise of wild and uncultivated land carried a fee without any words of inheritance; because a life estate would be of no use to the devisee. He would not, even if he could without committing waste, undertake the cultivation of the land devised. It would seem from the authorities above cited, that the plaintiff Babb, prior to the extent of Perley's execution, had no right to cut down the timber on his wife's land, or to do those acts which, in the case of a tenant for life, or years, would be waste. It is true Babb had the power to do it;, and so he had the power to pull down a house, had there been one on the land; or to beat and wound his wife; — but not the right to do this; because in the last case he would be indictable for the offense: — and, we believe that a Court of Chan- cery would prohibit a husband from a wanton destruction of the wife's house or property. The wife, in all these cases, is destitute of the usual remedy by action for damages against the husband for this or any other injury to her inheritance; because a wife can in no case sue her husband. The agreement to marry, and the consequent marriage, amount to a waiver of this right of action against each other. This principle is founded on reasons of sound policy. But it does by no means follow that because the husband has the power of doing many acts prejudicial to the interest or inheritance of his wife with impunity, that he can assign and transfer this power to a third person, and give him this privilege of impunity. In this situa- tion of parties policy does not require that this impunity should exist; and, therefore, it does not exist. As to the second question, we would observe that whatever were the rights and liabilities of Babb as husband, those of Perley, the 108 HUSBAND AND WIFE. assignee, seem to be more denned and better explained; and if any doubt remain as to Babb's rights before the extent of Perley's exe- cution, the cause may be decided on this second point by the appli- cation of principles well settled and understood. It is admitted that the extent of Perley's execution against Babb, upon his estate in the land in question, operated to transfer and convey to Perley all Babb's interest or estate in such land. It cer- tainly could not convey any more, though it might place the estate in a different situation in respect to other persons. Let us then suppose that, instead of this extent, Babb had by his deed conveyed to Perley all his right, title and interest in and to the land belonging to his wife. The facts would then present to us no other than the common case of the division of a fee simple estate into a freehold and a reversion. The freehold or life estate would be in Perley; and the reversion would be in Babb's wife; because Babb, her hus- band, had not, and could not have any control over this reversion. Nothing short of a deed signed by her as well as by him could ope- rate to convey it to Perley. The extent has not affected, in any degree, her reversionary interest. Perley, then, being only tenant for life of the land in virtue of the extent of his execution, he could not lawfully commit waste. It would be inconsistent with his estate. The act complained of is the cutting and carrying away and sell- ing about forty cords of wood. Of course, it was an act which a tenant for life has no right to do; it was not for fire wood nor fences; it was neither for building nor repairing. In the case before us, Mrs. Babb, the reversioner, sues Perley for committing this waste on her inheritance. Her husband is joined in the action, not because he has any interest, for that has already been legally conveyed to Perley; but because a feme covert can never sue alone, unless in two or three special cases, forming excep- tions to the general rule. And now, we may ask, why should not the action be maintained ? If it should be urged that it will be prejudicial to the rights of the husband's creditors, by depriving them of the power of converting the lands levied upon to any profit- able use; the answer is, the creditors of the husband cannot have any more control of the wife's land than the husband himself had. The creditors may avail themselves of the profits of the wife's land in satisfaction of their demands against the husband ; but if there are no profits, it is nothing more than the common misfortune of those creditors whose debtors are insolvent. The law is consistent and just. It subjects the land to the pay- ment of the wife's debts, and the profits to the payment of the debts of the husband. After mature deliberation, we perceive no WIFE S DOWER. IO9 other mode of deciding this cause without changing the nature of legal estates, and disturbing those principles by which such estates are created and protected. We are unanimously of opinion that the verdict must be set aside and a new trial granted. Wifes Dower. In re MARY ANN ALEXANDER. 53 N. J. Eq. 96.— 1894. The petitioner, Mary Alexander, claims to be the owner of a parcel of land, subject to the inchoate right of dower of Mary Ann Alexander, a lunatic. The petitioner asks that the right of dower be released under the act of March 27, 1878, which provides that it might be so released, if " the interest of the owner of such lands " requires it. Green, V. C. * * * It is objected that the act of 1878 does not apply to cases where the marriage from which the right to dower springs was contracted, and the lands in which it is claimed vested in possession in the husband before the passage of the act. The question involved is the scope of legislative power over dower inchoate at the time of enactment. A review of the numerous deci- sions bearing on the point, in the hope of extracting some recog- nized governing principle, would be a profitless task, as the cases developed an irreconcilable contrariety of opinion. Judges affirming the power of the legislature to modify, control and even abolish inchoate dower, argue that it is a mere possibility because it is a right which cannot vest before it becomes consummate by the death of the husband; that it is a mere incident to the marriage relation, established by law and not by contract, and therefore subject to legislative change or destruction. On the other hand, while recog- nizing that the consummation of dower is contingent on the death of the husband in the lifetime of the wife, other judges argue that inchoate dower is something more substantial than a mere possibility, viz., that it becomes, coincident with the seizin of the husband, an interest in such real estate. This is based on well-known inci- dents of the right. " Dower was, indeed, proverbially the foster- child of the law, and so highly was it rated in the catalogue of social rights, as to be placed in the same scale of importance with liberty and life." Park Dow. *2; Co. Litt. 124b. When it had attached by the seizin of the husband, it could not be discharged by any act of HO HUSBAND AND WIFE. his, although the owner of the fee, without the wife's concurrence. Park, Dow. 5. It is an encumbrance {Porter v. Noyes, 2 Greenl. 22 ; s. c. 11 Am. Dec. 30, note at 39), and, as such, defeats the contract to convev an unencumbered title (lb. Jones v. Gardner, 10 Johns. 266), and comes within a covenant against encumbrances. Shearer v. Ranger, 22 Pick. 447; Carter v. Dentnan, 3 Zab. 260. It is a valu- able consideration for a conveyance to a wife {Bullard v. Briggs, 7 Pick. 533; Garlick v. Strong, 3 Paige, 440), or for a promissory note to her. Sykes v. Chadwick, 18 Wall. 141. The wife may main- tain an action for its protection {Petty v. Petty, 4 B. Mon. 215; s. c. 39 Am. Dec. 501; Thayer v. Thayer, 14 Vt. 107; s. c. 39 Am. Dec. 211, 218), or file a bill for the redemption of a mortgage covering it. Davis v. Wetherall, 13 Allen, 60. She must be a party to any suit affecting it. Vreeland v. Jacobus, 4 C. E. Gr. 231. That it is an interest in the land from the time of the seizin of the husband is the law in this State. Wheeler v. Kirtland, 12 C. E. Gr. 534. In that case Catharine Kirtland was, and since 1836 had been, the wife of John Kirtland. On the 16th of December, 1869, her husband was the owner of about six acres of land in the county of Essex. On that day a judgment, was entered up against Kirtland, the husband. On May 30, 1870, the Essex public road board laid an avenue across the tract, taking two and eighteen hundredths acres. Damages were awarded to Kirtland, the husband, by reason of the taking and condemning of the same, to the amount of $15,000. The judgment creditors served a notice on the road board warning them not to pay the award to Kirtland. Afterwards, by a sale under the judgment? one Whitney became the owner of the rights of Kirtland, the hus- band, in the premises, and entitled to the interest of the husband in the amount awarded for the portion of the premises condemned. The wife, by her bill, claimed to have an interest in the award by reason of her inchoate dower in the land so condemned. The Court of Errors and Appeals held that the inchoate dower of the wife was a valuable interest in the land condemned, the value of which passed into the award by the transmutation of the land into money, and that she was entitled to the amount decreed in her favor by the chancel- lor. Mr. Justice Reed, in giving the opinion of the court, refused to follow the cases of Gwynne v. Cincinnati, 3 Ohio, 24, and Moore v. City of New York, 8 N. Y. no, upon which many of the decisions will be found to be based. The case of JJVieelerv. Kirtland expressly declares that inchoate dower is a valuable interest in land, and brings it within the protecting clause of the Constitution, which provides that private property shall not be taken for public use without just compensation. If this is so, on what principle can it WIFE S DOWER. Ill be said that it is not also within the rule of legislative inhibition that private property shall not be taken for private use with or with- out compensation, a rule which, if not a corollary from the clause quoted, springs out of the first clause of the bill of rights of our Constitution, which declares that the right of acquiring, possessing and protecting property is inalienable ? Under that rule it is not competent for the legislature, by enactment, to take the property of A and give it to B, nor, under the principle of Wheeler v. Kirt- land, to take a valuable interest in land which A. has acquired and transfer it to B. This inhibition of arbitrary legislation as to a right in property is not confined to a transfer of it from one person to another, but extends to attempts to impair its value or weaken its security. As the inchoate right of dower of Mrs. Mary Ann Alexan- der has attached to the land in question prior to the passage of the act, I am of opinion that its provisions do not apply to her interest therein. 1 In the Matter of the Estate of HENRY P. PULLING. 97 Mich. 375- — l8 93- Appeal by a widow from an order of the Circuit Court reversing an order of the Probate Court which allowed her dower in certain lands sold by her husband on contract, and not fully paid for during his lifetime. Reversed, and judgment certified to the Probate Court, giving the petitioner dower in the interest of her husband in said lands, to be admeasured by giving her a sum of money in lieu thereof. McGrath, J. The circuit judge found that Henry P. Pulling and Jeane W. Pulling were married April 26, 1890; that said Henry P. Pulling died July 15, 1890, leaving appellant, his widow, surviving him; that at the time of his death said Henry P. Pulling was seized in fee of ten parcels of land; that prior to the marriage of Henry P. Pulling, he had made and executed nine separate contracts for the sale of said parcels of land; that at the time of the said marriage, and also at the time of his death, the vendees under said contracts were, respectively, in the possession of the several tracts of land under said contracts, which were then in full force, — that is, none 1 "We think that it must be considered as settled in this State, notwithstand- ing Moore v. The Mayor, and some dicta in other cases, that, as between a wife and any other than the State, or its delegates or agents exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valu- able interest which will be protected and preserved to her, and that she has a right of action to that end." — Simar v. Canaday, 53 N. Y. 29S, 304. 112 HUSBAND AND WIFE. of them had been declared forfeited. The purchase-price in one instance was $400, in another $875, and in another $1,000. The others were from $1,100 to $14,500. The aggregate considera- tion was originally about $49,000. Payments had reduced this amount to $45,000. The sole question raised is whether, as be- tween the widow and the estate, the interest in these lands shall be treated as realty or as personalty. The circuit judge found, as a matter of law, that the widow was not entitled to dower in these lands, and the widow appeals. • Our statute provides (How. Stat. sec. 5733) that: " The widow of every deceased person shall be entitled to dower, or the use, dur- ing her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof." It is insisted on behalf of the estate that at the time of the mar- riage, Henry P. Pulling held the legal title only in trust for the pur- chasers. The cases cited, however, in which this has been asserted, and the right to dower denied, are, without an exception, cases where the vendee had paid the entire consideration. \Here follows a statement of the following cases : Kintner v. McRae, 2 Ind. 453; Stevens v. Smith, 4*J. J. Marsh, 64; Oldham v. Sale, 1 B. Mon. 76; Gaines v. Gaines, 9 B. Mon. 295; Rowlings v. Adams, 7 Md. 26; Cowman v. Hall, 3 Gill & J. 398; Firestone v. Firestone, 2 Ohio St. 415.] In none of these cases had the husband, even at the time of the marriage, any beneficial interest in the land. ******** In the present case it is not sought to subject the purchaser's in- terest, nor the interest held by the husband at the time of the mar- riage, to doWer. The only claim made is that the interest held at the time of his death shall be regarded as realty. It is purely a question of the quality of that interest. The husband died seized, not of the legal title alone, but of the legal title with a beneficial interest aggregating $45,000. A court of equity would undoubtedly interpose in any case to protect the interest of the purchaser, and this would be so even though the purchase-money had all been in fact paid during the lifetime of the husband. The wife's right would be regarded as attaching subject to the subsisting claim or existing contract, and would be liable to be defeated by the performance of the conditions of the contract by the purchaser during coverture. As is said in 4 Kent Com. 50: " The wife's dower is liable to be defeated by every subsisting claim or incumbrance, in law or equity, existing before the inception of her right." In the present case, the wife's dower has been defeated only so WIFE S DOWER. II3 far as the amount due upon the contracts has been reduced by pay- ments. Even though a trust be implied, it is one coupled with a beneficial interest, and it is well settled that the wife of a trustee is entitled to dower commensurate with the husband's interest. 4 Kent, Com. 43. In Bowie v. Barry, 3 Md. Ch. 359, the husband, in 1832, during coverture, purchased the land, taking from the vendor a bond con- ditioned to convey the title on payment of the purchase-money. In 1839 the husband sold the land, and gave to the vendee a bond for a deed. In 1843 the husband paid the balance of the purchase-money on his purchase and took a deed, and died in 1848. At his death a portion of the purchase-money upon the contract for sale made by him was unpaid. The court in that case say: " It may be that in equity an agreement of the husband to convey before dower attaches will, if enforced in equity, extinguish the claim to dower; but no case, I apprehend, can be found in which it has been held that a mere agreement to convey after the inception of the title to dower has defeated the title, though an actual conveyance without the con- currence of the wife would have done so. * * * No case has been decided in which it has been held that a mere executory con- tract to convey by the husband has had the effect to defeat the dower." Although in that case the legal title vested in the husband after marriage, he had, before deed to him, entered into a contract to convey that title, and there is no difference in principle between that case and the present. Section 5887 only applies to cases where a forfeiture has been de- clared, and, in any event, could only apply to the three contracts, not exceeding $1,000 in amount. It follows that the widow is entitled to dower in the interest held by the husband at the date of his death, that interest being repre- sented by the amount then due upon these contracts. We discover no difficulty as respects the admeasurement. Dower cannot be assigned of the lands in question, but a sum in lieu of dower may be awarded. Brown v. Brouson, 35 Mich. 415. The judgment of the Circuit Court will, therefore, be reversed, with costs of both courts to appellant, and the judgment of this court certified to the Probate Court for the county of Wayne. The other justices concurred. [Domestic Relations — S.] 114 HUSBAND AND WIFE. Archer, J., in McCAULEY v. GRIMES and WIFE. 2 Gill & J. (Md.) 323.— 1830. The record presents in effect the same principle for adjudication which has heretofore come before the courts in several States of the Union. In Holbrook v. Finney, 4 Mass. Rep. 566, it was decided that a conveyance in fee and a conveyance by the grantee to the grantor by way of mortgage being considered as parts of the same transac- tion, did not give to the grantee such a seizin as entitled his wife to have dower in the granted premises. And in Clarke v. Munroe, 14 Mass. 352, where the mortgage was made to a third person, at the same time with the deed to the mortgagor, the same determination was had; in each of those cases the deeds were executed in pursu- ance of a previous agreement between the parties. In South Carolina, the same doctrine had prevailed before, as will be seen by a refer- ence to Bogie v. Rutledge, 1 Bay, 312; this decision has been recog- nized, and approved in that State in a very recent decision. Trus- tees of Frazier v. Centre &-~ Hall, 1 McCord, 279. These determina- tions have been followed in New York. In Stow v. Tift, 15 Johns. 458, the case in 4 Mass. 566, was cited and approved, and a judg- ment given in conformity with it; in the latter case, however, no agreement was proved, further than could be inferred from the exe- cution of the conveyance and mortgage, and the internal evidence they furnished. In Pennsylvania, too, the same doctrine prevails. In Reed v. Morrison, 12 Sergeant & Rawle, 70, it was adjudged that as against the mortgagee for the purchase-money, the widow had no such seizin as would entitle her to dower. So far as we have ex- amined the American cases, the decisions appear to be uniform against the widow's right to dower, unless subject to the payment of the purchase-money secured by mortgage — and Chancellor Kent, in his recent treatise on the Law of Real Property, approves these determinations. 4 Kent's Com. 38, 39. The cases in Massachu- setts and New York proceed on the doctrine of instantaneous seizin. The deed and mortgage were looked upon as constituting but one contract, bearing the same date, and delivered at the same time; and that as no interval of time intervened, between the taking and rendering back the fee, the case might be assimilated to the conusee of a fine, whose wife would not be entitled to dower, because by che same fine the estate is rendered back to the conusor; it was there considered as merely in transitu, and not resting for an instant; the grant and render being one entire act. But, perhaps, there is no general rule in strictness, that in case of instantaneous seizin the wife's dower. 115 widow shall or shall not be entitled to dower; this must depend as well upon the character of the seizin as its duration; when a man has the seizin of an estate, though for an instant, beneficially for his own use, his widow shall be endowed ; where the husband is the mere instrument for passing the estate, although there may be an instantaneous seizin, the widow shall not be endowed. 1 Thomas Coke, 665, 666, note G; Preston, Est. 546; 2 Bac. Abr. 371. FOLLETT, J., IN PRICE v. PRICE. 124 N. Y. 598. — 1891. By the common law, neither dower nor curtesy arises from a voidable marriage, if it be annulled during the lifetime of the par- ties, and when annulled by the judgment of a competent court, they are in the same situation in respect to each other, and to rights in the property of each other, as though a marriage had never been entered into, and the children born of it are illegitimate unless legitimated by a statute. Aughtie v. Aughtie, 1 Phill. 201 ; Cage v. Acton, 1 Ld. Raym. 521; Bish. on M. & D., sees. 116-118, 690, 712; Bish. on H. & W. sees. 247, 479, 482; 1 Bright. H. & W. 7, 322; 2 Id. 366; 1 Roper H. & W. 332; Stewart M. & D. sees. 147, 429, 437- And in the absence of a statute saving the right to dower, the dis- solution a vinculo of a valid marriage, for the fault of either party, bars it. Barrett v. Failing, in U. S. 523; Frampton v. Stephens^ L. R. 21 Ch. D. 164; 14 Am. & Eng. Ency. of Law, 537; 5 Id. 921. GELZER v. GELZER. 1 Bailey's Eq. (S. C.) 387.— 1831. The complainant was the widow of Thomas Gelzer, who died in- testate; and this was a bill against his administrator, and distribu- tees, to recover either her dower of the real estate of the intestate, or her distributive share of his real, and personal estate. Johnson, J. The agreement, out of which the question arises, was entered into before, and in contemplation of the marriage be- tween the complainant, then Sarah Lewis, and the intestate, Thomas Gelzer; and it recites that the said complainant had, "in her own right, an ample estate entailed and secured to her, of which the said Thomas would not take any benefit after her death;" in considera- tion whereof, and of the nominal payment of one dollar, she cove- Il6 HUSBAND AND WIFE. nants, and agrees, that if the said Thomas should die, she surviv- ing, " she will nut have, claim, or demand, or pretend to have, claim, or demand, any dower, or thirds, or any other right, title, interest, claim or demand, of, in, or to, any of the messuages, lands, tenements, and real estate, whereof the said Thomas may have been seized during the intermarriage aforesaid." Under the statute 27 Hen. 8, c. 10, sec. 6, which is of force in this state, P. L. 51, this contract cannot operade as a bar to the complainant's right of dower, because, according to Lord Coke, nothing less than a freehold estate, to commence in possession at the death of the husband, settled upon the wife by way of joint- ure, would be allowed as a substitute, under the provisions of that statute; Co. Litt. 36b: and here nothing is provided for the wife. Neither can such a covenant operate as an estoppel at common law. It does not profess to be a relinquishment; and, moreover, she had, at the time, no interest upon which a relinquishment could operate. It can, therefore, bind, at law, only as an agreement not to claim, or demand her dower, etc. But equity frequently regards that as done which ought to have been done; or will, when it is necessary, compel parties, seeking the aid of the court, to do that which in conscience they are bound to do. The complainant was of full age, and under no legal disability to contract; the subject-matter was legitimate; and the consideration of marriage is sometimes said to be the highest known to the law; and I confess that I have not been able to discover any rule or principle which discharges her from the obligation which this agree- ment imposes. She had an ample fortune of her own, so tied up that she could not confer it upon her husband; and in considera- tion that he would take her in marriage, she agreed not to claim her dower, or any right of inheritance in his estate. It is a contract without fraud, and apparently of perfect equality. Both Atherley and Roper treat this question as one admitting of no controversy. A jointure, to operate as a bar to dower under the statute, must consist of a freehold estate; but a woman, under no legal disabil- ity, may stipulate to substitute anything she pleases in place of it. Atherley on Marriage Settlements, 511 ; 1 Roper, Husband and Wife, 480. There is nothing in the case of Hastings v. Dickinson, 7 Mass. 153, opposed to this view; for the chief justice, Parsons, puts that case distinctly on the ground that the condition upon which the wife covenanted to renounce her dower was not performed, and could not be performed, in consequence of the insolvency of the husband. The case of Glover v. Bates, 1 Atk. 439, turned upon the infancy of the wife, at the time when she entered into the agreement. WIFE S DOWER. WJ She was, therefore, incapable of binding herself by an agreement, and nothing but a jointure, in conformity to the statute, could bar her of dower. The appeal in this case must therefore be dismissed, and the decree of the Circuit Court affirmed; and it is so ordered. O'Neall, J. and Harper, J., concurred. CHURCH v. BULL. 2 Denio (N. V.), 430.— 1S45. On error from the Supreme Court. The action in the court below was ejectment brought by Bull and wife against Church, for the dower of Mrs. Bull, in lands of which a former husband was seized during their coverture. The Chancellor. The testator, in this case, devised his real and personal estate to his wife during her widowhood, and after her death or remarriage he gave all his property, except some small legacies which were bequeathed to his daughters, to his three sons. But he did not state in his will that he intended this provision for his wife, during her widowhood, to be in lieu of her dower in his real estate after the determination of such provision, by her re-marriage. And the only question for our consideration now is, whether the disposi- tion of his real estate after her re-marriage, is so inconsistent with her enjoyment of dower therein subsequent to that time, as to deprive her of such dower, and to leave her wholly unprovided for in case she should re-marry. There is no natural equity in the principle which gives to the hus- band the right to dispose of his whole personal estate, the joint earnings of himself and wife, to her exclusion; nor in that which gives him the power to dispose of his whole real estate except the use of one-third thereof during the life of the wife. Hence the courts have always been astute in protecting the widow's right to the small pittance which the rules of the common law had given to her in the estate of her husband after his death. Hence, as Lord Bacon stated nearly two hundred and fifty years since, the tenant in dower was so much favored in the courts that at that early period it had become " the common by-word in the law, that the law favoreth three things, life, liberty and dower." Bac. Read, on the Stat, of Uses, 38; Jenk. Rep. 7 Cent. Ca. 16. The right of dower being a legal right, and thus favored by the courts, the wife cannot be deprived of it by a testamentary disposition in her favor, in the nature of a jointure, so as to put her to her election, unless the tes- Il8 HUSBAND AND WIFE. tator has declared the same to be in lieu of dower, either in express words or by necessary implication. In the cases of Fuller v. Yates, 8 Paige's Rep. 325, and of Sanfordx. Jackson, 10 Id. 266, I had occa- sion to examine most of the cases on this subject which had then been decided, and I then concluded, as the result of all the cases in this State and in England, that the settled rule of law was, that to com- pel the widow to elect between the dower and a provision made for her in the will where the testator had not in terms declared his in- tention on the subject, it was not sufficient that the will rendered it doubtful whether he intended that she should have her dower in addition to that provision; but that to deprive her of dower the terms and provisions of the will must be totally inconsistent with her claim of dower in the property in which such dower was claimed; so that the intention of the testator in relation to some part of the property devised to others would be defeated if such claim was allowed. And in the last case, which was the same as this, except that the widow in that case was entitled to the whole real estate, even after her re-marriage, while any of the children continued to be minors, it was decided that her claim for dower in the one-third of the real estate, subsequent to the termination of her particular estate in the whole of the same, was not necessarily inconsistent with a general devise of the whole of his property to his children after that time. Since that decision was made, the case of Ellis v. Lewis, 3 Hare's Rep. 310, came before Vice Chancellor Wigram, in Eng- land, and was decided in favor of the widow upon the same princi- ple. He there says, " I take the law to be clearly settled at this day that a devise of lands eo nomine upon trusts for sale, or a devise of lands eo nomine to a devisee beneficially, does not, per se, express an intention to devise the lands otherwise than subject to its legal incidents, that of dower included. There must be some- thing more in the will, something inconsistent with the enjoyment by the widow of the dower by metes and bounds, or the devise standing alone will be construed as I have stated." And in Harri- son v. Harrison, 1 Keene's Rep. 768, Lord Langdale says that prima facie the testator's farms, lands, and all his other real estate, must mean the real estate of which he had the power of disposing; which would be his real estate subject to lawful claims, and one of those claims would be the dower of his wife. Here the whole property is devised to the widow during her widowhood. Of course, no ques- tion of dower could arise while she continued a widow, as she was entitled to the possession of the whole during that time. And the subsequent devise of his whole real estate to his three sons is not necessarily inconsistent with an intention, on the part of the testa- WIFE S DOWER. II9 tor, that his wife should be left to her legal right of dower alone for her support, after the particular estate which had been devised to her had been determined, by her marriage. In the language of the vice-chancellor and master of the rolls in the above cases, prima facie the devise of the testator's whole real estate to his three sons after that time did not per se express an intention to devise such real estate otherwise than subject to its legal incidents, one of which legal incidents was the widow's com- mon-law right of dower therein. For these reasons I think we cannot deprive the wife of the testa- tor of her dower in the lands of her deceased husband subsequent to her marriage, consistently with the settled rule of law on this subject; and that the judgment of the Supreme Court was right and should be affirmed. 1 1 " In California and a few other states the common-law dower has been wholly abolished, and a species of interest, borrowed from the French and Span- ish laws, has been introduced, called "community property." This community property embraces both what at the common law would be real and personal estate, and in fact substantially the same rules govern the devolution of things real and things personal. The law of these states recognizes two kinds of property which may belong to the spouses in case of marriage — ' the separate property ' and the ' community property.' The separate property of either hus- band or wife is what he or she owned at the time of marriage, and what he or she acquired during marriage by inheritance, devise, bequest, or gift, and the rents and profits thereof. The separate property of each spouse is wholly free from all interest or claim on the part of the other, and is entirely under the management, control, and disposition, testamentary or otherwise, of the spouse to whom it belongs. All other property is community. It is a settled doctrine that all property acquired by the husband after the marriage, and during its continuance, is presumed to be community. During the marriage the husband alone has the custody, control, management and power of disposition of the community property, and it is liable for his debts ; but still in theory the wife has an inchoate, undivided interest in it during the entire coverture, so that the husband cannot transfer it by mere gift or otherwise with the intent and pur- pose of defrauding her of her share, or of defeating her exclusive interest expectant upon his death. Upon the death of the wife, the entire community property vests in the husband, without the necessity of any administration. Upon the death of the husband, the community property is first subject to the payment of debts and expenses of administration, and of the residue the widow is entitled absolutely to one undivided half, which is partitioned, and set apart, and vested in her in the proceedings for administering upon the estate ; while the other half is subject to the testamentary disposition of the husband, or if he dies intestate, devolves upon specified persons as his ' heirs.' In other words, the husband's power extends only to one-half of the community property, and he cannot by will devise or bequeath it in any manner or to any person so as to infringe upon the widow's vested right to one-half. With respect to the widow's election, whenever the husband has made a provision for her benefit, and has assumed to dispose of all the remaining community property, the California 120 HUSBAND AND WIFE. Husband's Estate by the Curtesy. FERGUSON v. TWEEDY. 43 N. Y. 543.— 1871. The wife of the plaintiff, being co-devisee with her brother of a certain farm, with a limitation over on the death of either without issue to the survivor, by deeds interchanged with her brother before marriage, partitioned, until either should die without issue and no longer, the farm devised, and went into exclusive possession of the part conveyed to her, the brother taking exclusive possession of the part conveyed to him. The wife died leaving issue (the defendant), and subsequently the brother died without issue. The action was brought originally by Harvey D. Ferguson, the plaintiff's testator, for equitable relief. Folger, T. This action cannot be sustained unless Harvey D. Ferguson, the testator, had in his lifetime an estate as tenant by the curtesy in the premises, or some part of them, which were recovered in the action of the respondents against Samuel G. Green, judgment wherein was rendered on the 1st of February, 1861. To establish such tenancy there were needed four things: Marriage, issue of the marriage, death of the wife, and her seizin, during marriage, of the premises in question. There is no dispute but that all of these ex- isted, save the last. It is a general rule that to support a tenancy by the curtesy there must be an actual seizin of the wife. Mercer s Lessees v. Set don, 1 How. (U. S.) 37-54. The rule is not inflexible. There are excep- tions to it. The possession of a lessee under a lease reserving rent, is an actual seizin, so as to entitle the husband to a life estate in the land as a tenant by the curtesy, though he has never received or demanded rent during the life of his wife. Ellsworth v. Cook, 8 Paige, 646. Wild, unoccupied or waste lands may be construct- ively in the actual possession of the wife. 8 J. R. 271. A recovery in an ejectment has been held equivalent to an actual entry. 8 Paige, supra. And it has been held that, where the wife takes under a deed, and there is no adverse holding at the time, actual entry is not necessary. Jackson v. Johnson, 5 Cow. 74. Code has only legislated by prescribing the time within which her election must be made, in cases where an election is necessary, and by declaring that certain conduct by her shall amount to an election. The more important question, when a case for election arises from the provisions of a will, is left to be deter- mined by. the settled doctrines of equity jurisprudence which deal with that sub- ject matter." — Pomeroy, Equity Jurisprudence, § 503. HUSBANDS ESTATE BY CURTESY. 121 But the facts of this case open not the door for any of these excep- tions to come in. Before the marriage of the testator to his wife, she did convey by quitclaim deed the premises in question for a term which was in its duration as long as her life. The grantee in that deed, thus acquiring an estate for her life in the lands, did enter, and he and his assign held the possession up to her death, and afterward. It is true that this deed was one of two inter- changed between the parties to effect an amicable partition of premises held by them at that time in common. But the execution of these deeds, if followed, as it was, by possession in severalty, was valid and sufficient to sever the possession for the lifetime of the testator's wife. Baker v. Lorillard, 4 N. Y. 257; Carpenter v. Schermerhorn, 2 Barb. Ch. 314. And from the time of the execution by her of that deed, until the day of her death, she had not, nor had her husband, actual posses- sion of the premises; she nor he made claim to the possession of them; she nor he received rent or other profit from them; she nor he had right to ask possession or rent or profit. In short, there did not any fact exist which, for her lifetime, after the execution of the deed, gave her a constructive possession or right of pos- session. On the contrary, there did exist in another, so far as she and her husband were concerned, exclusive possession, and right of such possession, for a term which ran for her life. There was, then, an outstanding estate for life in the premises, which, beginning before her coverture began, did not end until her cover- ture ended. And it is settled, that if there be an outstanding estate for life, the husband cannot be the tenant by the curtesy of the wife's estate in reversion or remainder, unless the particular estate be ended during the coverture. Stoddard v. G/bbs, 1 Sumner, 263-70; /// re Cregier, 1 Barb. Ch. R. 598. It is among the facts found by the learned justice before whom the action was tried, that the possession of the grantee in that deed, and of his assign, was actual and exclusive. It is found, also, that neither the wife of the testator, nor the testator himself, did at any time after the execution of that deed have actual possession of the premises, or receive the rents and profits thereof. And these find- ings are upheld by the proof. There is no escape from the conclusion that there was lacking one of the essentials in a tenancy by the curtesy in favor of the testator. This defect in the plaintiff's case being fatal, it is not necessary that we examine the other questions involved. The judgment of the court below should be affirmed, with costs to the respondent. All the judges concurring, judgment affirmed. 122 HUSBAND AND WIFE. FOSTER v. MARSHALL. 22 N. H. 491. — 1851. Writ of entry. Bell, J. The principal question arising in this case is as to the effect of the Statute of Limitations upon the defendant's right of action. It appeared that the demanded premises were set off by a committee of partition, appointed by the Court of Probate, to Mary Foster, formerly Mary Eastman, the mother of the demandant, as her share of the estate of her father, Samuel Eastman, deceased, on the 14th of May, 1814. Mary Foster was then the wife of Frederick Foster, by whom she then had one or more children. Frederick Foster died in 1834, and his wife in 1836. They had six children, whose rights are said to be now vested in the plaintiff. The defendant proved that in 1817, one Morrill was in possession, claiming to be the owner of the demanded premises. He conveyed the same by deed, dated July 3, 1817, to one Marshall, who entered and occupied, claiming title, till April 30th, 1847, when he conveyed to the tenant, who has since remained in possession. The tenant claims that he had perfect title by thirty years' undisturbed and peaceable possession. The demandant alleges that his right is not barred, because at the time when the disseizin occurred, in 181 7, Mrs. Foster was a feme covert, and up to 1834 her husband had an estate for life in the premises and she had no right of entry until his decease, and consequently no right of action till then, and that since that time twenty years have not elapsed. Under the Statute of Limitations, which was in force in this state before the Revised Statutes, it must be considered settled that the statute did not affect the right of a remainderman or reversioner, during the continuance of the particular estate; and that neither the acts nor the laches of the tenant of the particular estate could affect the party entitled in remainder. Wells v. Prince, 9 Mass. Rep. 508; Wallingford v \ Hear/, 15 Mass. Rep. 471 ; Tilson v. Thompson, 10 Pick. Rep. 359- No right of entry or action accrued to, or vested in the heirs of the wife during the continuance of an estate by the curtesy. Jackson v. Schoonmaker, 4 Johns. Rep. 390. But the party entitled is not barred until the usual period of limitation after the termina- tion of the life estate. Heath v. White, 5 Conn. Rep. 228; Witham v. Perkins, 2 Greenl. Rep. 400. If, then, the husband had, in this case, an estate by the curtesy, or any interest in the land which would entitle his wife, who survived, to be regarded as seized only in remainder or reversion, she and her heirs would have the full period of twenty years after the death of husband's estate by curtesy. 123 the husband to commence their action. To constitute a tenancy by the curtesy, the death of the wife is one of the four things required. The estate of the husband is initiate upon the birth of issue. It is consummate on the death of the wife. 4 Kent's Com. 29; Co. Litt. 30a. By the intermarriage, the husband acquires a freehold interest, during the joint lives of himself and his wife, in all such freehold property of inheritance as she was seized of at the time of marriage, and a like interest vests in him in such as she may become seized of during the coverture. The husband acquires jointly with the wife a seizin in fee in the wife's freehold estates of inheritance, the husband and wife being seized in fee in right of the wife. Gilb. Ten. 108; Co. Litt. 67a; Palyblank v. Hawkins, 1 Saund. Rep. 253, n; s. c, Doug. 350. This interest may be defeated by the act of the wife alone; as if, at common law, the wife is attainted of felony, the lord by escheat could enter and eject the husband. 4 Hawk. P. C. 78; Co. Litt. 40a; Vin. Ab. Curtesy, A; Co. Litt. 351a. After the birth of issue the husband is entitled to an estate for his own life, and in his own right, as tenant by the curtesy initi- ate. Co. Litt. 351a, 30a, 124b; SchermerAorn v. Miller, 2 Cowen's Rep. 439. He then becomes sole tenant to the lord, and is alone entitled to do homage for the land, and to receive homage from the tenants of it, which until issue born must be done by husband and wife. 2 Black. Com. 126 ; Litt. sec. 90 ; Co. Litt. 67a, 30a. Then he may forfeit his estate for life by a felony, which, until issue born, he could not do, because his wife was the tenant. 2 Black. Com. 126; Roper, Hus. & Wife, 47. If the husband, after the birth of issue, make a feoffment in fee, and then the wife dies, the feoffee shall hold the land during the husband's life; because, by the birth of issue, he was entitled to curtesy, which beneficial inter- est passed by the feoffment. Co. Litt. 30a. If such feoffment is made before issue born, the husband's right to curtesy is gone, even though the feoffment be conditional and be afterwards avoided. And if in such case the husband and wife be divorced a vinculo matrimonii, the wife may enter immediately. Guneley's Case, 8 Co. Rep. 73. The husband's estate after issue born, will not be defeated by the attainder of the wife, for his tenancy continues, he being sole tenant. 1 Hale, P. C. 359; Co. Litt. 351a, 40a; Bro. Ab. Forf. 78. The obvious conclusion from these views of the nature of the inter- est of a tenant by the curtesy initiate is, that such tenant is seized of a freehold estate in his own right, and the interest of his wife is a mere reversionary interest, depending upon the life estate of the hus- band. The necessary result of this is, that the wife cannot be preju- diced by any neglect of the husband, and, of course, she may bring 124 HUSBAND AND WIFE. her action, or one may be brought by her heirs, at any time within twenty years after the decease of the husband, when his estate by the curtesy, whether initiate or consummate, ceases, and her right of action, or that of her heirs, accrues. In this respect there is no distinction between curtesy initiate and curtesy consummate. Mel- vin v. Locks & Canals, 16 Pick. R. 140. So far as we are aware, this principle has never been questioned, where the inheritance of the wife has been conveyed to a third person either by a deed of the husband alone, or by a deed executed by a husband and wife, which from some defect did not bind the interest of the wife. Miller v. Shackleford, 3 Dana Rep. 289; Caller v. Metzer, 13 Serg. & Rawle Rep. 356; Fagan v. Walker, 5 Iredell Rep. 634; McCorryv. King, 3 Humph. Rep. 267; Melius v. Snowman, 8 Shepley Rep. 201; Meramonx. Caldwell, 8 B. Mon. Rep. 32; Gill v. Fauntleroy, lb. 177; Melvin v. Loeks & Canals, 16 Pick. Rep. 140. But it has been held (Melvin v. Locks & Canals, 16 Pick. Rep. 161; Kittridgcv. Locks & Canals, 17 Pick. Rep. 246) that where a disseizin has been committed upon the wife's estate, the disseizin is done alike to hus- band and wife; that a joint right of entry and of action accrues to both for the recovery of it, and that if such remedy is notuprosecuted within twenty years, it is barred. This is true where the husband has acquired no estate by the curtesy, and is seized merely in the right of the wife of her estate. Such are the cases of Guion v. Anderson, 8 Humph. Rep. 298; Melius v. Snowman, 8 Shep. Rep. 201. And if the husband is tenant by curtesy, as he and his wife are seized of the fee in right of the wife, the action must be brought by husband and wife, and a joint seizin in fee alleged in them in her right. Anon. Buls. 21. Their joint right of action is barred by the lapse of twenty years after it accrues. But it by no means fol- lows that the reversionary right of the wife, accruing in possession after the estate of her husband has ceased, is also barred. It is well settled, that the same party may have several and successive estates in the same property, and several rights of entry by virtue of those estates, and one of those rights may be barred without the others being affected. Hunt v. Burn, 2 Salk. 422; Wells v. Prince, 9 Mass. Rep. 508; Stevens v. Winship, 1 Pick. Rep. 318; Tilsonv. Thompson-, 10 Pick. Rep. 359. And every reason which can exist in favor of the right of any rever- sioner, applies equally in this case, namely, that a reversioner has, as such, no right of entry and no right of action during the particular estate, and consequently is not barred until twenty years after his own right of entry accrued. 2 Sugd. V. & P. 353; 3 Steph. N. P. 2920, ESTATES BY THE ENTIRETY. 1 25 n. 10; 9 Mass. Rep. 508; 1 Pick. Rep. 318; 15 Mass. Rep. 471; 10 Pick. Rep. 359; 4 Johns. Rep. 390, before cited. Besides, the wife, by reason uf her disability, can make no entry to revest her estate during the coverture. Litt. p. 403; Co. Litt. 246a. Coke says in express terms, " after coverture, she (the wife) cannot enter without her husband." In Jackson v. Johnson, 5 Cow. Rep. 74, and Heath v. White, 5 Conn. Rep. 228, this question arose, and was decided in accordance with our views, and we think upon sounder principles than the case in Massachusetts, to which we have referred. We have compared the provisions of the Revised Statutes with the older statutes, and do not perceive that there is, as to the point in question, any difference in their effect. Under neither would the plaintiff propose to claim any advantage from the proviso. His ground is not that the ancestor was a married woman when her right accrued, but that her marriage and the birth of one or more children had vested a life estate in her husband, and that the dis- seizin was done to him, and that no right of action accrued to her in virtue of the reversionary interest, under which her heirs now claim, until she became a widow, and the husband's estate had terminated; and that the action is brought within twenty years after that event. This appears to us a correct view of the case, and of the law; and the verdict must therefore be set aside, and a new trial granted. Estates by the Entirety. HILES v. FISHER. 144 N. Y. 306. — 1895. A deed of land running to "William R. Fisher, of the town and county aforesaid, and Maria J. Fisher, his wife," was executed in 1866. Later he gave a mortgage on his land to Hiles, as security for a loan made to him by Hiles, which mortgage was executed by Fisher alone. The mortgage was foreclosed and the premises were bid in by Hiles, but the defendants, Fisher and wife, refused to give posses- sion. The General Term adjudged that, by the foreclosure sale, the plaintiff acquired the right to the possession of the whole property during the joint lives of Mr. and Mrs. Fisher, and to the fee in case the husband survived the wife. Andrews, C. J. It was decided in Bcrtlcs v. Nunan, 92 X. Y. 152, that the separate property acts relating to the rights of married 126 HUSBAND AND WIFE. women had not abrogated the common-law doctrine, that under a conveyance to husband and wife they take not as tenants in com- mon, nor as joint tenants, but by the entirety, and upon the death of either the survivor takes the whole estate. In that case the hus- band had died, leaving his wife surviving, and the question was whether the wife as survivor took upon the death of her husband the entire fee under the doctrine of the common law. The question, what change, if any, had been wrought by the separate property acts in respect to the common-law rights of the husband to control and use the property conveyed to husband and wife during their joint lives, was not considered or decided upon, but was expressly reserved on the ground that it was not involved in the case then before the court. That question is involved in the present case and must now be decided. The decision in Berths v. Nunan is supported by the great weight of authority in other jurisdictions in this country, but in some of the states it has been held that as a consequence of the statutory pro- visions, substantially like those in this state, conferring upon married women the right to take and hold separate property to their own use, free from the control of their husbands, as femes sole, estates by entireties have been abrogated and turned into tenancies in com- mon. In the states where this construction has been put upon the married women's acts, the questions of the rights of the parties to the usufruct during their joint lives could scarcely arise, because it is one of the generally admitted results of this legislation that the common-law right vested in the husband to the rents, profits and use of his wife's real estate during their joint lives has been destroyed. It is, however, a much more serious question what the effect of this legislation is upon the common-law right of the husband to the usufruct during the joint lives of the husband and wife, of lands con- veyed to them jointly, in those states where it is held that notwith- standing the new legislation a conveyance to husband and wife retains its common-law character and incidents. If the right of the husband to the use during the joint lives of lands held under this ten- ure was a right growing out of and incident to this particular species of tenancy; in other words, if it was one of its specific and essential characteristics, then it would be difficult to segregate this right from the other rights incident to and flowing from the tenancy, and to say that while the estate by entireties continues this feature of it was intended to be taken away. But the taking away from the husband the usufruct during the joint lives of lands conveyed to husband and wife would not be inconsistent with the continuance of tenancies .by entireties, provided the common-law right to the usu- ESTATES BY THE ENTIRETY. \2J fruct was not an incident of the tenancy, but of the marital right operating upon property so held, as upon all other real property of the wife. The grand characteristic which distinguishes a tenancy by the entirety from a joint tenancy is its inseverability, whereby neither the husband nor the wife, without the assent of the other, can dispose of any part of the estate so as to affect the right of sur- vivorship in the other, i Bl. 182; Wash, on Real Prop. 425. Each is said to be seized of the whole estate, and they do not take by moieties, and the reason assigned in the old books for this anomalous characteristic of this estate is the legal unity of the husband and wife, and the incapacity of the wife to hold a separate and severable estate in lands under joint conveyance to both. The alleged inca- pacity of a wife to take and hold lands conveyed to husband and wife as joint tenant or tenant in common with him seems inconsistent with the doctrine which has finally obtained, that by express words of a grant or devise to husband and wife that species of tenure would be created. This was pointed out in Miner v. Brown, 133 N. Y. 308, and authorities were cited to show that where the intention dis- closed by the deed or will was to create a tenancy in common that estate would be created. See, also, McDcrmott v. French, 15 N. J. Eq. 78; Wales v. Coffin, 13 Allen, 213; 1 Wash, on Real Prop. 425. There is a tendency now to regard the creation of an estate by the entirety as resting upon a rule of construction rather than upon a rule of law, and to regard the intention as disclosed by the deed or will creating it as the governing rule for determining whether that estate was created rather than a joint ten- ancy or tenancy in common. See In re March, 27 Ch. Div. 166, and cases before cited. It was conceded under the old law that husband and wife, who were joint tenants or tenants in common of lands before marriage, remained so afterwards. Coke on Litt. 187b. It would seem to follow that there was no general incapacity in the wife to hold lands with the husband in joint tenancy or as tenant in common. The quality of the estate held by the husband and wife as tenants by the entirety, in the aspect of its inseverability, has been adverted to. But it is important, in view of the subsequent discus- sion, to observe that the wife, as well as the husband, took an estate under a grant to both. Each was said to be seized of the whole, and not of any separate part. Neither could convey his or her inter- est to the prejudice of the right of survivorship in the other. The common-law, however, wholly ignored this principle of equality between husband and wife in regulating the rights of the parties to the enjoyment of the estate during the joint lives. They were not regarded as having a joint seizin or a joint possession for the pur- 128 HUSBAND AND WIFE. pose of the use during coverture. The husband was held to be entitled to the full control and to take the rents and profits of the land during the joint lives, to the exclusion of the wife, and he had power to sell, mortgage or lease for the same period, and this life interest was, according to the weight of authority, subject to the claims of his creditors. Barber v. Harris, 15 Wend. 615; Jackson v. McConncll, 19 Id. 175; Meeker v. Wright, 76 N. Y. 262; Bertles v. Nunariy supra; Ames v . Normaml, 4 Sneed, 683; Pray v . Stebbitis, 141 Mass. 219. But the right of the husband at common law to take the rents and profits of lands held by him and his wife as tenants by the entirety, during coverture, and to assign and dispose of them during that period, did not, we apprehend, spring from the peculiar nature of this estate. He acquired no such right by force of the convey- ance itself, and it was not an incident thereto. It was a right which followed the conveyance and inured to the husband from the general principle of the common-law which vested in the husband, jure uxoris, the rents and profits of his wife's lands during their joint lives. 2 Kent Com. 130; Stewart on Husband and Wife, sec. 308. The hus- band took the rents and profits of lands held in entirety upon the same right that he took the rents and profits of her other real estate, whether held by a sole or joint title, namely, his right as husband. In none of the definitions of tenancies by entireties have we found any suggestion that this was one of the incidents or characteristics of such estates, and we think it is plain, both upon reason and analogy, that it had its origin in those harsh principles of common law which destroyed for most purposes the legal identity of the wife and subjected her person and property to the control of her husband. In considering what effect, if any, the legislation in this state has had upon the right of the husband to the rents, profits and control of lands held by him and his wife in entirety, during their joint lives, it is important to regard not only the language, but the spirit of the new enactments. The sole purpose of the original statute of 1848 was to secure to married women the enjoyment of their real and per- sonal property which belonged to them at the time of their marriage, or which they might thereafter acquire by gift, grant or bequest from third persons, and to abrogate the common-law right of the husband in and to the real and personal property of the wife. The right to the rents and profits of her lands, jure uxoris, during the joint lives, was completely swept away, not by express enactment, but as a necessary consequence of investing her with the beneficial use of her own property, free from his control. Subsequent legislation con- firmed her rights as defined by the act of 1848, and enlarged them in other directions, but the act of 1848 was the seed from which all ESTATES BY THE ENTIRETY. 1 29 the subsequent legislation sprung. This legislation rendered un- necessary any longer the cumbrous mechanism of settlements or resort to the imperfect powers of courts of chancery to secure to married women the enjoyment of their own property. In determining the question now before us too much emphasis cannot be placed upon the fact that the legislation of 1848 and the subsequent years uprooted the principle of the common law, hoary with age, which vested in the husband, by virtue of the marriage relation, control of the proprety of his wife and the right to exclude her from its enjoyment. If it is still held, notwithstanding this legislation, that the husband takes the whole rents and profits during coverture in lands held in entirety, and may exclude the wife from any participation therein, an exception is allowed, standing upon no principle, and it deprives the wife, although she has an undoubted interest and estate in land, from any benefit thereof during the lives of both. There are, as we can perceive, but two other alternatives. Either the rents and profits follow the nature of the estate, and can neither be disposed of nor charged except by the joint act of both husband and wife, which seems to be the view taken in McCurdy v. Canning, 64 Pa. St. 39, or the parties become tenants in common or joint tenants of the use, each being entitled to one-half of the rents and profits during the joint lives, with power to each to dispose of or to charge his or her moiety during the same period, which seems to be the view taken in Buttlar v. Rosenblath, 42 N. J. Eq. 651. We think the rule adopted in New Jersey best reconciles the difficulties surrounding the subject. The estate granted is not thereby changed. It leaves it untouched, with all its common-law incidents. It deals with the rents and profits and the use and control of the estate during coverture only, and gives to each party equal rights so long as the question of survivorship is in abeyance, thereby conforming to the intention of the new legislation to take away the husband's right, jure uxoris, in his wife's property, and to enable the wife to have and enjoy "whatever estate she gets by any conveyance made to her or to her and others jointly, and does not enlarge or diminish that estate." The rule in Pennsylvania not only deprives the husband of his common-law right to the enjoyment of the whole rents and profits, but of the enjoyment of any share thereof, except with the concurrence and permission of his wife. The conclusion we have reached requires a reversal of the judg- ment below so far as it adjudges that the mortgage executed by the husband to the plaintiff, and the sale thereunder, vested in the plain- tiff the right to the possession of the whole estate during the joint lives of Mr. and Mrs. Fisher. The husband had a right to mortgage [Domestic Relations — 9.] 130 HUSBAND AND WIFE. his interest, which was a right to the use of an undivided half of the estate during the joint lives and to the fee in case he survived his wife, and by the foreclosure and sale the plaintiff acquired this interest and became a tenant in common with the wife of the premi- ses subject to her right of survivorship. The opinion of the General Term exhibits with great clearness, the reasons upon which it was held that a conveyance or mortgage by the husband, without restric- tive words binds the fee in case he survives the wife. See 1 Wash. Real Prop. 425; 1 Prest. Est. 135; Ames v. Norman, supra. The judgment below should be modified in accordance with this opinion and, as modified, affirmed, without costs to either party. All concur except Haight, J., not sitting. Judgment accordingly. Gifts and Conveyances between Husband and Wife. MOORE v. PAGE. in U. S. 117.— 1883. This was a creditor's bill to reach property conveyed by the debtor to his wife, and have it applied to the payment of the debt. The decree below sustained the conveyance, from which the creditor appealed. Mr. Justice Field delivered the opinion of the court. It is no longer a disputed question that a husband may settle a portion of his property upon his wife, if he does not thereby impair the claims of existing creditors, and the settlement is not intended as a cover to future schemes of fraud. The settlement may be made either by the purchase of property and taking a deed thereof in her own name, or by its transfer to trustees for her benefit. And his direct conveyance to her, when the fact that it is intended as such settlement is declared in the instrument or otherwise clearly estab- lished, will be sustained in equity against the claims of creditors. The technical reasons of the common law growing out of the unity of husband and wife, which preclude a conveyance between them upon a valuable consideration, will not in such a case prevail in equity and defeat his purpose. Shepardv. Shepard, 7 Johns. Ch. 57; Hunt v. Johnson, 44 N. Y 27; Story's Equity, sec 1380; Pomeroy's Equity, sec. 1101; Dale v. Lincoln, 62 111. 22; Dewing v. Williams, 26 Conn. 226; Maraman v. Maraman, 4 Met. Ky. 84; Sims v. Rickets, 35 Ind. 181; Story v. Marshall, 24 Texas, 305; Thompson \. Milts, 39 GIFTS AND CONVEYANCES BETWEEN HUSBAND AND WIFE. 131 Ind 528. Such is the purport of our decision in yonesv. Clifton, ior U. S. 225. His right to make the settlement arises from the power which every one possesses over his own property, by which he can make any disposition of it that does not interfere with the existing rights of others. As he may give it or a portion of it to strangers, or for objects of charity, without any one being able to call in question either his power or right, so he may give it to those of his own house- hold, to his wife or children. Indeed, settlements for their benefit are looked upon with favor and are upheld by the courts. As we said in Jones v. Clifton: "In all cases where a husband makes a voluntary settlement of any portion of his property for the benefit of others who stand in such relation to him as to create an obligation, legally or morally, to provide for them, as in the case of a wife, or children, or parents, the only question that can be properly asked is, does such a disposition of the property deprive others of any existing claims to it? If it does not, no one can complain if the transfer is made matter of public record and be not designed as a scheme to defraud future creditors. And it cannot make any differ- ence through what channels the property passes to the party to be benefited, or to his or her trustees, whether it be direct conveyance from the husband, or through the intervention of others." Whilst property thus conveyed as a settlement upon the wife may be held as her separate estate, beyond the control of her husband, it is of the utmost importance to prevent others from being misled into giving credit to him upon the property that it should not be mingled up and confounded with that which he retains, or be left under nis control and management without evidence or notice by record that it belongs to her. Where it is so mingled, or such notice is not given, his conveyance will be open to suspicion that it was, in fact, designed as a cover to schemes of fraud. In this case there was much looseness; and the transactions between the husband and the wife touching the property were well calculated to excite suspicion. It is, therefore, with much hesitation that we accept the conclusion of the Circuit Court. We do so only because of its findings that there was no deception or fraud intended by either husband or wife; that the appellants were not led to give any credit upon the property, but acquired their interest in the judgment which they are seeking to have satisfied, long after the transaction complained of occurred ; that the title to the Dearborn avenue property was taken by mistake in his name, and that the mistake was rectified before this litigation commenced; that the bonds and notes in the bank which the creditors seek to reach repre- sent the money advanced by her from the sale of that property for 13- HUSBAND AND WIFE. the purpose of meeting an alleged deficit in his account as adminis- trator of the estate of Maxwell, and in equity belong to that estate ; that the money applied in satisfaction of the mortgage upon the Lincoln avenue property was part of the proceeds of that sale, and that she was entitled to have the conveyance to her from Mrs. Max- well treated as security for that money. Such being the case, the creditors have no claim upon the bonds and notes superior in equity to that of the Maxwell estate, nor upon the Lincoln avenue property superior to that of the wife. Decree affirmed. Denio, J., IN WHITE v. WAGER. 25 N. Y. 328, 329. — 1862. It is an established doctrine of the common law that, in conse- quence of the unity of person between husband and wife, neither the husband nor the wife can grant the one to the other, an estate in possession, reversion or remainder, to take effect in possession dur- ing the lifetime of the grantor. (Litt., sec. 168; Co. Litt., 3a, 112a; Hargrave's Note 12, and cases referred to; Bell on Property of Hus- band and Wife, 470; Firebrass v. Pennant, 2 Wils. 254; Shepard v. Shepard, 7 Johns. Ch. 57; Voorhees v. The Presbyterian Church of Amsterdam, 17 Barb. 103, and cases cited by Hand, J.; Simmons v. McElwain, 26 Barb. 419; Dempseyx. Tylee, 3 Duer, 73.) There are some exceptions to the rule not necessary to be adverted to here, but which will be found sufficiently stated in the treatise of Mr. Bell, at the place cited. The rule itself is one of those stubborn mandates of the common law which requires absolute obedience from the courts whatever they may think of the justice or equity of its appli- cation in a particular case. In the case referred to, from Wilson's Reports, where a provision by a husband for his wife was in question, the judges said they would be glad, if possible, to get over that maxim of law, that " a husband and wife are one person," and, there- fore, cannot grant lands to one another. " But," they said, " we are dealing with a fundamental maxim of the common law, and might as well repeal the first section of Littleton, as to determine this grant from the husband immediately to the wife to be good, and where there is not so much as the shadow of a person intervening." The reporter adds that the postea was ordered to be delivered to the defendant, " reluctante tota atria." But it is, nevertheless, a very technical principle; and where the design is for a husband to con- vey to the wife, it may be evaded in various ways, as by a feoffment GIFTS AND CONVEYANCES BETWEEN HUSBAND AND WIFE. 1 33 to a third person to the use of the wife, or a covenant with a third party to stand seized to the use of the wife {Bell, ut sitp.)\ or, where the wife desires to convey to the husband, the two may join in a conveyance to any one whom they can trust to convey immediately to the husband ; and thus the title will be vested in him. Merriam v. Harsen, 2 Barb. Ch. 232. Buskirk, J., in SIMS v. RICKETS. 35 Ind. 181, 192. — 1871. First. None of the disabilities imposed upon a married woman have attached to the condition of a married man, who is as free to receive the title to the property and dispose of it after marriage as before, except that he cannot by his conveyance affect the inchoate right of the wife to his real estate. Second. That a conveyance from a husband directly to his wife without the intervention of a trustee, is void at law. Third. That a direct conveyance from a husband to his wife will be sustained and upheld in equity in either of the following cases, namely: 1. Where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit or that of their family, or which has been appropriated by him to his uses. 2. Where the husband is in a situation to make a gift to his wife, and distinctly separates the property given from the mass of his property, and sets it apart to the separate, sole, and exclusive use of his wife. Fourth. Where a wife advances money to her husband, or the husband is indebted to the wife upon any valid consideration, the wife stands as the creditor of her husband, and if the conveyance is made to pay or secure such liability, the wife will hold the property free from the claims of other creditors, wmere the transaction is unaffected by unfairness or fraud. Fifth. Whenever a contract would be good at law when made with trustees for the wife, that contract will be sustained in equity, when made with each other, without the intervention of trustees. Sixth. That prior to the recent legislation in this state author- izing married women to hold real estate to their separate use, when a conveyance was made by a stranger to a married woman, or to a trustee for her, in order to give her a separate use in the propertv, it was necessary that such conveyance should contain words clearly indicating such intention, but such words were unnecessary in a con- 134 HUSBAND AND WIFE. veyance from a husband to his wife, for the law presumed that it was intended for her separate and exclusive use. Seventh. That section 5 of an act entitled "an act touching the marriage relation and liabilities incident thereto" (approved May 31st, 1852), made all property held by a married woman at the time of her marriage, or acquired by her subsequently, hers absolutely, and has enabled her to use, enjoy and control the same independ- ently of her husband and as her separate property; and that since the passage of that act a conveyance to a married woman need not contain words indicating that she is to hold the property to her separate use. Eighth. That when conveyances from a husband to his wife have not been sustained in equity, it has been on account of some feature in them impeaching their fairness and certainty, as that they were not in the nature of a provision for the wife, or when they interfered with the rights of creditors, or when the property given or granted had not been distinctly separated from the mass of the husband's property. Ninth. That in consequence of the absolute power which a man possesses over his own property, he may make any disposition of it which does not interfere with the existing rights of others. Tenth. When a husband is free from debt and has no children, and conveys property to his wife for a nominal consideration, the law will presume that it was intended as a provision for his wife. Eleventh. That a conveyance from a husband to his wife which is good in equity vests the title to the property conveyed in the wife as fully, completely and absolutely as though the deed had been made by a stranger upon a valuable consideration moving from the wife. It appears by the record in this case that the grantor was possessed of a large property; that in his will he disposed of about $8,000 in specific legacies; that the value of the property disposed of in the residuary clause is not shown; that he had no children, and if he had died intestate, his wife would have inherited his entire estate; that the rights of creditors were not interfered with by the conveyance in question ; that the great and commendable anxiety displayed in his will for the welfare, comfort and happiness of his wife tends to show that the conveyance which he had made a short time before was intended as a provision for his wife; and that in making his will he had such conveyance in mind, and did not intend to devise to his brothers and sisters the property which he had previously con- veyed to his wife. We are clearly of the opinion that the conveyance in question was good in equity and should be sustained. DEVISES AND BEQUESTS BY THE WIFE. 1 35 Devises and Bequests by the Wife. VAN WINKLE v. SCHOONMAKER. 2 McCart. (N. J. Eq.) 384.— 1862. The ordinary. The appeal is from a decree from the Orphans' Court of Bergen county, admitting to probate the will of Mary D. Van Winkle, the wife of the appellant. The will disposes of both real and personal estate of the testatrix. It is dated on the 1st of February, 1859, and was offered for probate on the 24th of March, ensuing, and on that day a caveat was filed by the husband against the probate. It appears, from evidence, that the scrivener was requested, by the husband of the testatrix, to write the will, and was furnished by him with instructions for that purpose. After the death of the tes- tatrix, a day was fixed for the reading of the will at the house of the husband. Notice was given by him to the heirs of his wife, and the will was read there in his and their presence. He knew of its being taken to the surrogate's office for probate, and made no objection to it. At the time the will was executed, both the scrivener and the hus- band of the testatrix supposed that she had a legal right to dispose of her property, real and personal, by will. The mistake was not discovered until the will was taken to the surrogate's office for pro- bate. The fact of the testatrix being a married woman appearing upon the face of the will, the surrogate suggested doubts in regard to its validity. He told the parties, however, that the matter might be arranged, the heirs of the testatrix being of age, by their releasing to the devisee the land devised to her under the will. The husband consented to the probate of the will, if the devises, as well as the bequests, could be carried into effect. The heirs refused to consent to the proposed arrangements, and thereupon the husband filed a caveat against the probate. The testatrix and her husband having been married over twenty years, the case stands entirely clear of the operation of the act of 1852 for the better securing the property of married women. As to the real estate, the will is clearly invalid. A married woman is incapable of devising real estate. 2 Bla. Com. 498; Nix. Dig. 874, sec. 3. She is also incapable of disposing of her chattels by will without the consent of her husband. Such a will, being a mere nullity, will not be admitted to probate. 3 Bla. Com. 498; 4 Coke's Rep. 51b; 1 Williams on Executors, 45. I36 HUSBAND AND WIFE. But with the consent of her husband, the wife may make a valid will of her personal estate, or even of the goods of her husband. Such consent maybe by parol, may be express or implied. It may be- before or after the death of the wife, as if a woman makes a will of the goods of her husband and dieth, and after the probate of the will the husband delivers the goods to the executor, he hath made it a good will, notwithstanding he was not privy to the making thereof. It shall be intended, that by the delivery of the goods by the husband to the executor according to the will, he assented to the making thereof. Perkins on Conveyances, "Devises," ch. 8, sec. 501; 1 Swinb. on Wills, 80, part 2, sec. 9. In the case now under consideration, the will was made with the knowledge and consent of the husband of the testatrix. His consent was given by implication, both before and after the death of the testatrix. But it is objected that the consent is inoperative, because it was given by the husband under a mistaken apprehension of his rights. He believed that his wife had a perfect right, under the act of 1852, to dispose of her property without his consent. No con- sent, therefore, it is said, can be implied from his acquiescence. Even his express consent, to be available^ must be an intelligent consent. However consonant the objection may seem to our ideas of justice, I do not perceive upon what principle it can rest. As a general rule, it is clear that a party cannot be relieved, even from his contract, by reason of a mistake in law. Here is a mere waiver of his interest in the property bequeathed by the wife. The husband consents that the wife shall dispose of his property, or of her prop- erty in which he has an interest. The consent is founded upon no consideration. It is not legally binding. It may be revoked at the husband's pleasure. It is personal to the husband, and no more than a waiver of his rights as her administrator. It can only give validity to her will in case he survives his wife. But how can it be said to be void or inoperative by reason of a mistake of his rights? If no legal rights have been acquired under the consent, it is clearly in- operative. If such rights have been acquired, it is not perceived how they can be lost by reason of an error in law committed by the husband. It is further objected that the consent is inoperative, because it was a qualified assent — an assent to the will as an entirety, valid in all its parts. This qualification was in terms annexed to the con- sent made, at the surrogate's office, to the probate of the will. But no such qualification was annexed, in terms at least, to the original assent made to the will t at the time of its execution. If this con- sent could be regarded as a matter of contract — if, for example, the husband, by an express agreement consents that the wife shall dis- THE WIFE'S EARNINGS. 1 37 pose of her entire estate by will, provided she bequeaths one-half of it for his benefit, or in such mode as he should suggest, the failure to comply with the terms might terminate the consent. But it is not perceived how this doctrine is to operate in case of an implied consent. And if the husband consents that the wife may dispose of all her property by will, that consent cannot be invalid because a part of her property is by law incapable of being disposed of by will. There is, in fact, no room for the application of either of these objections. The consent is not obligatory, but is revocable at the pleasure of the husband at any time before probate granted. It is nothing more nor less than a consent that the will be admitted to probate. If that is revoked, probate cannot be granted. 2 Swinb. on Wills, 81, part 2, sec. 9; Henlyx. Phillips, 2 Atkins, 49; 1 Roper on Husb. and Wife, 170; 1 Bright on Husb. and Wife, 65; 1 Williams on Ex'rs, 46; 1 Jarman on Wills, 31. Some of the cases seem to maintain a different doctrine. Brook v. Turner, 2 Mod. 172. It is reported to have been held by Sir H. Jenner Fust, in Maas v. Sheffield, that if after the death of the wife the husband does assent to a particular will, he is bound by that assent; and as a consequence of that decision, it is stated by elementary writers, that if, after the death of the wife, the husband acts upon the will or once agrees to it, he is not, it seems, at liberty to retract his assent and oppose the probate. 1 Williams on Ex'rs, 47, and note w; 1 Bright, 65, and note d. As applied to a particular state of facts, that may be true. If, for instance, the executor, in advance of the probate, with the assent of the husband, dispose of the property bequeathed to third persons, or if rights are otherwise acquired under the will, it may well be that the husband would not be permitted to retract his assent and oppose the probate. But this will be found not to affect the gen- eral principle that the consent is revocable by the husband at any time before probate. The decree of the Orphans' Court must be reversed. The Wifcs Eai'iiings. PRESCOTT v. BROWN. 23 Me. 306. — 1843. Sheplev, J. The plaintiff, being the widow of David Prescott, deceased, brings this suit to recover for services performed in wash- ing for the defendant, while she was a feme covert residing with her husband. I38 HUSBAND AND WIFE. The counsel for the plaintiff contends that, she being the meritori- ous cause, an action might have been maintained for those services in the name of the husband and wife during the life of the hus- band. And that, when the wife may be joined, the cause of action survives to her. The elementary writers cited appear to sustain these positions, with this qualification, that she may be joined, when the cause of action being for her personal labor, there is an express promise to her. In the case of Pratt & ux. v. Taylor, Cro. Eliz. 61, an action by husband and wife was maintained on an express promise to the wife by the defendant, that he would repay to her, if he did not marry her daughter, ten pounds, which he had before received from her. In the case of Brashford v. Buckingham 6° ux., Cro. Jac. 77 and 205, the action was sustained by a husband and wife, on the promise made to the wife to pay her for her services in curing a wound. And in Wetter v. Baker, 2 Wil. 424, this case is approved, and it is stated, that a like doctrine was held in the case of Holmes 6° ux. v. Wood. And it is stated by Comyn, that where the wife cannot have an action for the same cause, if she survives her hus- band, the action shall be by the husband alone. Com. Dig. Baron and Feme, W. In Buckley v. Collier, 1 Salk. 114, it was decided that the husband and wife could not maintain an action for the labor of the wife in making a peruke, without an express promise to the wife. If these authorities were admitted to state the law in all respects with entire accuracy, the result would seem to be, that the wife, surviving her husband, would have the right to recover for her personal labor, performed for another during the coverture, if payment had not been made to the husband, and to apply the proceeds to her own use, if she could prove an express promise to herself. And her right of property in such personal labor would depend upon her obtaining such a promise. By the common law the service and labor of the wife during co- verture becomes the property of the husband for their support, for which he is bound to provide. It is difficult to perceive how she can be said to have a property in such personal labor, which survives to her, when the right of property therein was appropriated to the husband by the marriage. And in the case of Buckley v. Collier, it is said, " the advantage of the wife's work shall not survive to the wife, but goes to the executors of the husband." And no case has been noticed in which a different doctrine has been held. But whatever may be the rule of law in this respect, the plaintiff cannot maintain this suit without proving an express promise to herself, and the testimony does not furnish any such proof. Plaintiff nonsuit. 1 1 See also Boozer v. Addison, ante, p. 95. THE WIFE'S SEPARATE ESTATE IN EQUITY. 1 39 The Wife's Separate Estate in Equity. NIX v. BRADLEY. 6 Rich. Eq. (S. C.) 43.— 1853. Dargan, Ch. There are three modes of disposition, by which a separate estate may be created in favor of a married woman. First, where technical words are employed; as in instances where the estate is given for " the sole and separate use of the wife." Second, where the estate is not given after this form, but the marital rights are excluded by express words. For example, where an estate is given to the wife, but not to be subject to the power, control or liabilities of the husband; or, where the marital rights are restricted by words of a similar import. Third, where the marital rights are excluded by implication; as in instances where, by the instrument creating the estate, the wife has the power to do acts, to exercise a control, and to make disposition of the property, which are inconsistent with the marital rights. It is thought that the most, if not all, the cases of this description may be brought within one or the other of these classi- fications. The testator, David Cave, by his will, directed all his estate, real and personal, to be sold by his executors. One sixth part thereof he gave to his son Matthiew Cave, absolutely, and for ever. He then proceeds to declare as follows: "The other remaining five parts of my property, real and personal, I bequeath to my son Mat- thiew Cave, in trust nevertheless, for the use, benefit and interest of my daughters, Dorcas Kirkland, Elizabeth Nix, Martha Cave, Nancy Cave and Mary Cave, in equal proportions, share and share alike, and not subject to the debts, contracts, or sale of their pre- sent, or future husband." This constituted a separate estate in the testator's daughters under the second classification of such cases above enumerated. In January, 1835, the testator's land and some of the personal estate was sold for the purpose of partition. And a division was made among the parties entitled, of the remaining chattels, including the negroes. The presiding chancellor in his report of the case states that, "on the nth February, 1836, Martha Cave, (then sui juris) gave Matthiew Cave a receipt for $768.69, in full of her share; with a schedule prefixed, showing that she received a slave named Peter, at $55°, cash $50, and other articles mostly consumable in the use. In April, 1835, Martha Cave sold Peter to Jesse Nix for $600; and in April, 1835, purchased from A. J. Nix for $650, two slaves, Chloe I40 HUSBAND AND WIFE. and her child Richard and took a bill of sale in her own name. Chloe has since had four children, Cuffee, Bob, Adam and Nancy. On the 6th December, 1838, the defendant Robert Bradley inter- married with Martha Cave, she being then about thirty-two years of age. At the time of the marriage, according to the responsive state- ments of the answer (and there was no opposing evidence), she was possessed of the two slaves, Chloe and Richard, a horse, about eight head of hogs, seven cattle, and two beds and furniture, and nothing more. And all of these chattels, except the two slaves, have long ago been dead, or consumed in the use. The defendant admits that after the marriage he received certain small sums of money, appearing by proof, to be about $300: represented to be on account of his wife's share of her father's estate; but alleges that the whole was expended during the coverture. It further appears that the defendant received from Matthiew Cave, chattels valued at $32 and money to the sum of $175, as his wife's share of the estate of Nancy Cave, one of the testator's daughters who died without issue; also the sum of $34.40, in full of the share of himself and wife in the estate of John Cave, deceased, who is stated, but not proved, to have been a debtor of the testator." Martha Bradley died 29th June, 185 1, and the plaintiff, A. J. Nix, administered on her estate in January, 1852. This bill was filed on nth May, 1852. The plaintiffs claim from the defendant on account of the estate which his deceased wife, Martha Bradley, derived under her father's will, on the ground, that it was her separate estate, upon which the marital rights did not attach; and that Martha Bradley dying intes- tate, said estate was distributable among her next of kin under the statute of distribution. I have already shown that the estate which Martha Bradley derived under her father's will was, in its inception, her separate estate. But there may be a fee in an equity as well as in a legal estate; and Martha Bradley took an absolute interest in the equity. There was no limitation or remainder. The plaintiffs had no estate in the property, and they can only claim in the way of succession by or through her. The question then occurs can a. feme sole, who is sui juris, alienate her separate estate ? Can she encumber it ? Can she subject it to the payment of debts; devise or bequeath it? Can she make any disposition of it which a man, under similar circumstances would be authorized to make? There cannot be a doubt, that on both princi- ple and authority, all of these questions must be answered in the affirmative. One of the most valuable incidents in the institution of property, is the right of alienation ; and no citizen of the country, male or female, who is under no disability, can be restrained in the THE WIFE S SEPARATE ESTATE IN EQUITY. 141 exercise of the right, without a violent assault upon the very nature of the institution. There is no form of conveyance which ingenuity can devise, by which a man, who is under no disability, can have property without the power to convey and assign his right, whatever that may be. The same principle applies in full force, and all the reasoning on which it is founded, to a feme sole under the like circum- stances. Woodmeston v. Walker, 2 Russ. & M. 197; Brown v. Pocock, 2 Russ. & M. 210; s. c, 5 Sim. 663 ; Jones v. Salter, 2 Russ. & M. 208; Barton v. Briseoe, Jac. 603. The married woman is secure in the enjoyment of her separate estate, without the power of alienation, and of subjecting it to payment of her debts on the ground that she is under the disability of coverture, and can make no contracts, or assignments that are binding upon her estate, further than is authorized by the instrument creating it. If these views be not cor- rect, a. feme sole with a separate estate, though it be in fee, would be denied the enjoyment of her property with the incidents belonging to it, and which make it valuable. She would not be able to devise, bequeath, sell or give it, though she lived in single blessedness to the end of her life. There is no reason in such a restraint upon the rights of property. The authorities which I will now cite abundantly show that I have not stated the principle too strongly. " It is, at length, clearly established," said Mr. Lewin, "that a feme sole may dispose abso- lutely of a gift to her separate use; and the principle is briefly this, that whenever a person possessing an interest, however remote, is sui juris, that person cannot be restrained by any intention of the donor, from exercising the ordinary rights of proprietorship." Lew. on Trust, 151. Sir Edward Sugden, in treating of a woman's power over her separate estate, prior to marriage, says, "her power of alienation, while discovert, is denied by none." 1 Sugden on Pow- ers, 202. Mr. Bell says, "if property be given to the separate use of a woman who is not married at the date of the gift, with a clause in restraint directed against any future marriage, she will have all the rights of a feme sole, and an absolute ownership while she con- tinues sole. And upon her application, the property will be trans- ferred to her absolute use." Bell on the Property of Husband and Wife, 508. Mr. McQueen says, "as the separate use cannot exist but in the married state, so neither can restraint upon anticipation. There is no form of limitation whereby a single woman can be pre- vented from squandering her income, or dissipating her monev. If, then, property become invested in her while discovert, although the instrument may express that the gift is to be to her separate use, and subject to restraint upon alienation, she may nevertheless dis- 142 HUSBAND AND WIFE. pose of it absolutely; because property cannot be given to a feme sole, any more than to a man, without being subject to the incidents which property implies; and one of these is the unlimited power of disposal." i McQueen on Husband and Wife, 313. In Tullett v. Armstrong, 1 Beav. 1; s. c, 4 My. & Cr. 390, Lord Langdale held, that the alienation of her separate estate by a feme sole was valid. "The restraint," he says, "is annexed to the separate estate only during coverture. Whilst the woman is discovert, the separate estate, whether modified by restraint or not, is suspended, and has no operation, though it is capable of arising upon the happening of a marriage." This decision was on appeal affirmed by Lord Cotten- ham, 4 My. & Cr. 405. Sir John Leach twice held that a woman, while sole, could not assign her separate estate; and in both cases his decisions were reversed by Lord Brougham, who held that the assignments were valid. 1 Sug. Pow. 202. {]Voodmeston v ■. Walker, 2 Russ. & M. 197; Brown v. Pocock, 2 Russ. & M. 210.) It is clear, therefore, that all the dispositions which Martha Brad- ley made of her separate estate before her intermarriage with the defendant are valid, and did not constitute any separate estate in her at the time she entered into the coverture. And this includes Chloe and Richard, and the other issue of Chloe. She sold Peter, as she had a right to do. With the purchase money of Peter, the chancellor says, (he is satisfied from the evidence), she bought Chloe and Richard. But she took the title in her own name, discharged of all trust, or restriction, thus renouncing the separate estate. These negroes were never a part of the separate estate, and the marital rights attached upon them. But the chancellor says, "the defendant admits that, after the marriage, he received several small sums of money, appearing by proof to be about $300, represented to be on account of his wife's share of her father's estate; but alleges that the whole was expended during the coverture." Upon this state of facts, the question is raised, whether the sepa- rate use does not continue as to that portion of the estate which was not disposed of by the wife while sole, and which was received by the husband after the marriage? And if so, is the husband who has received the same liable to account? It is asked with much plausi- bility and force, if the woman, while sole, can sell or even give away her separate estate, why may not the husband take it as a purchaser for valuable consideration ? " Has the court any authority to alter the nature of that property on her subsequent marriage, and limit the gift so as to exclude the rights of the husband ? " Coleridge Sol. in Tullett v. Armstrong, 1 Bev. 11. The principle asserted in the foregoing proposition is not without THE WIFE'S SEPARATE ESTATE IN EQUITY. 143 the support of authority. Massey v. Parker, 2 My. & K. 174; New- ton v. Reid, 4 Sim. 141. It seems at no late day to have been a dis- puted question in the English Court of Chancery. 1 Mad. Ch. 473; Pawlet v. Delaval, 2 Ves. Sen. 679; Clinton v. Hooper, 5 Bro. C. R. 201; Lynn v. Ashton, 1 Russ. & M. 188. It would be proper here to remark that between the law of England and that of South Caro- lina there is an important distinction as to the power of a mar- ried woman over her separate estate. Whilst in the former country the wife has all the rights incident to property, with the absolute power of disposal, even in favor of her own husband, except so far as she is restricted by the instrument which creates the estate; in this state, the wife having a separate estate, has, during covert- ure, no power of alienation over the property further than she is authorized by the instrument under which she derives it. Without bearing in mind this distinction, the English cases upon this interest- ing subject will not be so well understood. Thus they hold there that a married woman, having a separate estate without any restraint upon the power of disposal, may do with it as she pleases; may exercise all the rights of ownership. It is otherwise where there is a restraint upon alienation. In such instances, the wife, in her use of the estate, must conform to die conditions which the restraint imposes upon her. It is the latter class of cases that will apply in questions arising in our courts, where the restraint exists in all cases of separate estate where power is not given to the wife ; and such restraint is implied from the nature of the estate. In Squire v. Dean, 4 Bro. C. C, 326, it was held, that if the husband is permitted by the wife to receive her separate estate, and it is applied to the main- tenance of the family, she will be presumed to have assented to such application of it. And in Beresford v. The Archbishop of Armagh, 13 Sim. 643, it was held, that if the husband receives the wife's sepa- rate estate, and the fact be known to the wife without the assertion of any claim or objection on her part, a gift to the husband will be presumed. The defendant, Robert Bradley, says, by way of defense, that the portion of the separate estate of his wife received by him was ex- pended during the coverture. It does not appear that it was expended in support of the family; nor by the express or implied assent of the wife. And even by the English case the husband, under such circumstances, would be held to account on the death of the wife. But conceding that it was satisfactorily proved, that the property was expended for the support of the wife, or was actually given by her to the husband, or to a stranger, the principle of the class of cases last referred to will not apply in this state. Those are 144 HUSBAND AND WIFE. cases in which the wife's power over her separate estate was not restricted. They are not in point here, where the wife can in no case sell, or give, her separate estate, unless it be coupled with a power of disposal, or appointment to uses. When a feme sole has a separate estate, with restraint upon alien- ation, in England, or without it in this state (where the restraint is always implied), though the restriction be suspended, and the power of alienation exists unfettered, while she is a discovert, as soon as she marries, the restraint is called into activity, and operates to the exclusion of the marital rights. This doctrine was fully recognized in Tullett v. Armstrong, i Beav. i. And on appeal it was affirmed by Lord Cottenham. s. c, 4 My. & Cr. 377, 392. It would seem, however, that "the moment she becomes again single, the separate use, and the restraint in anticipation, will both cease, though still capable of revival, and subject to extinction, upon subsequent mar- riages, and subsequent discovertures, toties quoties." McQ., H. & W., 314; Jones v. Salter, 2 Russ. & M. 208; Barton v. Briscoe, Jac. 603. In Clark v. Jacques, 1 Beav. 36, an annuity was given by will to Sarah Grace Hitchcock, who was a. feme sole, at the death of the testator, to her separate use, and with a restraint upon aliena- tion. After the death of the testator, Sarah Grace Hitchcock inter- married with Thomas Jacques, who died leaving Sarah Grace surviving him. She afterwards intermarried with Richard Hitch- cock. The said Richard Hitchcock and Sarah Grace Hitchcock having sold the annuity to one Ireneus Mahew, united in a petition to the court for a confirmation of the sale. No disposition of the annuity was made while she was discovert. Lord Langdale, master of the rolls, refused the petition, holding that the separate use with restraint against alienation attached upon the estate during the second coverture. See Scarborough v. Borman, 1 Beav. 34; Dixon v. Dixon, 1 Beav. 40. The reason why a feme sole having a separate estate, even with a restraint upon alienation, may sell, or give it to a stranger, and yet the husband may not take it as a purchaser upon the valuable con- sideration of marriage, has been placed upon various grounds. The distinction is anomalous. By some it has been attempted to be based upon the assent tacitly given by the husband when he marries a woman with a separate estate. Lord Cottenham in Tullett v. Arm- strong, 4 My. & Cr. 404. But as reasoned by his lordship, resting the claim of the wife upon such assent of the husband, it is assumed that without such assent it would not exist. Neither could the assent of the husband be implied without notice of the set- tlement, and thus would be raised an issue of fact as to the notice in THE WIFE'S SEPARATE ESTATE IN EQUITY. 145 almost every case. Based upon such grounds, the protection which this court could give to the separate estates of married women would be very inadequate and uncertain. Others have supposed the title of the husband as a purchaser to be defective, because the title is not consummated until the solemnization of the marriage; after which, the wife is incompetent to contract, or to confer title, by reason of the coverture. This reason is also illogical and inconsist- ent; for by the same process of reasoning it could be shown that the wife would be incompetent by her marriage to confer title upon her husband of her chattels in possession. The doctrine must be allowed to be an anomaly — an exception to the usual incidents of property — a creature of the court of equity, adopted for the pre- servation of the separate estates of married women, without which they would, in many instances, be endangered and destroyed by the marital power and influence. It is surely within the competency of a court, where the idea of separate estates originated, and where rights under them are enforced, contrary to the rights of the hus- band as recognized in courts of law, to modify the rules regulating such estates, and to amplify their defences, so that they may be effectually preserved for the purposes for which they are created. Besides this, the aim of the donor in creating a separate estate is always directed against the marital rights. Without marriage, no such estate would be created; neither could it be. It can only exist in the marriage state; for, otherwise, it has no meaning. The court, therefore, simply carries out the intentions of the donor, and the purpose of this institution, when it considers a feme sole competent to dispose of her separate estate while she is sole; and if not so alienated, in disallowing the marital rights of the husband after the marriage. The sum for which the defendant will be responsible, under the foregoing principles, will be small; not exceeding $300, if so much. The solicitor for the defendant, in this branch of the case, has quoted the law maxim, " de minimis non curat /ex." The maxim has never applied to money demands. Nor do I know that the sum in contro- versy would be regarded by the parties claiming it as insignificant. Be this as it may, we are not at liberty to withhold a remedy for the enforcement of any claim, however small, which is presented in proper form, and to which the party claiming is entitled by the law of the land. It is ordered and decreed that the circuit decree be modified. It is further ordered that the defendant is liable to account to the administrator of his deceased wife, Sarah Bradley, for all sums of money and choses in action; also, for all other property of the tes- [Domestic Relations — 10.] I46 HUSBAND AND WIFE. tator, other than that which was consumed in the use, and which have come into the hands of the said defendant during his coverture with the said Sarah Bradley; together with interest upon the value of the same from her death. It is further ordered and decreed, that the commissioner take an account of the same, and report to the Circuit Court. In all other respects it is ordered and decreed, that the circuit decree be affirmed, and the appeal be dismissed. Dunkin and Wardlaw, CC, concurred. Johnston, Ch., absent at the hearing. Decree modified. Spencer, C. J., in JACQUES v. METHODIST EPISCOPAL CHURCH. 17 Johns. (N. Y.) 548, 578. — 1820. The question is whether Mrs. Jacques, with respect to her estate, is not to be regarded in a court of equity as a feme sole, and may not dispose of it as she pleases, without regard to her trustee; there being nothing in the deed of settlement requiring the consent or concurrence of her trustee, nor any negation of an unlimited power of disposition of the estate by her. I have examined this case with the unfeigned respect which I always feel for the learned chancellor, who has denied the right of Mrs. Jacques to dispose of her estate, without the consent or concur- rence of her trustee; and I am compelled to dissent from his opinion and conclusions. From the year 1740, until 1793 (with the single exception of the opinion of Lord Bathurst in Hulme v. Tenant, which occurred in 1778, and in which case a rehearing was granted by Lord Thurlow, and the opinion reversed), there is an unbroken current of decisions, that a feme covert, with respect to her sepa- rate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate. There were nearly twenty cases decided by Lord Hardwicke and Lord Thurlow, con- taining the principle I have stated, and which I shall not weary the patience of the court by citing. The case of Sockctt v. Wray (4 Br. Ch. C. 483), before Sir R. P. Arden (Master of the Rolls), in 1793, was the first case to break the continuity of decisions. This formed a precedent for the case of Hyde v. Price (3 Vesey, jun. 437), then followed the cases of Whistler v. Newman (4 Vesey, jun. 129), and THE WIFE'S SEPARATE ESTATE IN EQUITY. Itfl Mores v. Huish (5 Vesey, jun. 692), decided by Lord Loughborough. In Whistler v. Newman, Lord Loughborough admitted that the cases had gone the length, and that he was bound by them, that if a mar- ried woman has separate property, she may dispose of it, and the trustees were bound to follow her disposition. In Mores v. Huish, his lordship distinguished it from the preceding cases. These cases are succeeded by many others, after Lord Eldon became chancellor, in which he restored the law to its first and ancient principle. In the case of Parkes v. White (11 Vesey, jun. 209), he reviewed all the cases, and strongly intimated, that the decision in Whistler v. Newman was in opposition to all the authorities for a century. He laid down the rule to be, that a married woman, hav- ing an estate to her separate use, is capable of disposing of it, pro- vided the transaction is free from fraud, and no unfair advantage is taken of her. The mistake into which I think the chancellor has fallen, consists in considering Mrs. Jacques restrained from disposing of her estate in any other way than that mentioned in the deed of settlement. The cases, in my apprehension, are clearly opposed to this distinct- ion; and I am entirely satisfied, that the established rule in equity is, that when a feme covert, having separate property, enters into an agreement, and sufficiently indicates her intention to affect by it her separate estate, when there is no fraud or unfair advantage taken of her, the court of equity will apply it to the satisfaction of such an engagement. This was the principle adopted by Lord Hardwicke, in Grizby v. Cox (1 Vesey, senr. 517), and the same doctrine pre- vailed in Pybus v. Smith, Ellis v. Atkinson, and in Newman v. Cartony (3 Br. Ch. C. 340, 346). In Pybus v. Smith, Lord Thurlow observed, if a. feme covert sees what she is about, the court allowed of the alien- ation of her separate property. The same principle was adopted in Fettiplace v. Gorges (3 Br. Ch. C. 8; 1 Vesey, jun. 46), and in Wag- staff v. Smith (9 Vesey, jun. 520.) It seems to me that the power reserved to Mrs. Jacques, by the deed, has been misconceived ; I understand it, that during her life, her estate is to be at her absolute disposal, with a further power to grant and devise it by her last will and testament; but if the power of disposition was specifically pointed out, it would not preclude the adoption of any mode of dis- position, unless there were negative words restraining the exercise of the power, but in the very mode pointed out. Chancellor Dessaussure, in 3 Equity Reports of cases determined in South Carolina, p. 427, has, with great ability, examined all the cases upon this subject, and arrived at the conclusion I have formed. It is t r ue that his opinion, and that of Chancellor Thompson, who !48 HUSBAND AND WIFE. concurred with him, were overruled by the three other chancellors; but it was on the express ground that the question was res nova in that state, and that they were not bound by decisions in England in consequence of colonial statute of 1721. And those who differed in opinion from Chancellor Dessaussure, admit that his opinion was in conformity with the English decisions. COONEY v. WOODBURN. 33 Md. 320. — 1870. Alvey, J. The question in this case arises upon the effect of a clause in the will of Patrick Cooney, who died in September, 1849. The will was made in April, 1849. The testator left several children surviving him, and among them Eleanor B., the appellant's intestate, to whom was bequeathed, by her father, certain leasehold property in the city of Baltimore, for her sole and separate use and benefit, without being subject to the control or disposal, or liable for the debts, of her husband, if she should thereafter marry; and such of the testator's property as passed to his daughter Eleanor B., under the residuary clause of the will, was also declared to be for her sole and separate use and bene- fit, independent of the control or disposal of her husband, if she should marry. At the time of the death of the testator, the daughter, Eleanor B., was unmarried; but she became possessed of the prop- erty bequeathed to her by her father's will, and in August, 1854, was married to Charles H. Woodburn, the testator of the appellees. She died intestate, and without issue, in 1864, her husband surviving her. Her property was all taken possession of by the surviving husband, without administration; and in August, 1866, he died, leaving a will, by which he gave his property to his mother, one of the appellees, and David E. Woodburn, his brother, became admin- istrator of his estate. In 1867, George A. Cooney, the appellant, obtained letters of administration upon the estate of his sister, Eleanor B. Woodburn, and in his character of administrator claimed the property that had been bequeathed to his intestate by her father, and which had passed into the possession of her surviving husband at the time of her death. The bill in this case is filed to enforce that claim. And the single question argued on this appeal is, whether the personal property of the wife limited to her sole and separate use by her father's will, passed, upon her death intestate and without issue, to. her husband, in his own right, or to her administrator? THE WIFE'S SEPARATE ESTATE IN EQUITY. I49 It is contended on the part of the appellant that, according to the intention of the testator, as manifested in the terms of his will, the daughter took the estate bequeathed to her as feme sole, and that she bore that relation to it during life, notwithstanding her marriage, and that all the marital rights of the husband were excluded, as well after the death of the wife as before, and that, consequently, the property devolved on the appellant as administrator of the wife; while on the part of the appellees it is contended that during the coverture the marital rights of the husband in the property were only suspended, and that upon the death of the wife, the separate quality of the property ceased, and the marital rights of the husband attached, as if the separate use had never been declared. In determining the question it is important to observe the terms in which the bequests were made. They gave the property to the legatee, then a single woman, for her sole and separate use, without being subject to the control or disposition of her future husband, but without any limitation over whatever, or the employment of any terms to indicate how the property was to pass on the death of the daughter; nor is there any limitaiton as to the mode of assignment or appointment. The legatee was clothed, therefore, with general power of alienation as feme sole, both before and after marriage. Cooke v. Husbands, 11 Md. 492. The separate estate, the mere creature of a court of equity, is allowed and maintained for the benefit and protection of the wife, against the improvidence and misfortunes of the husband, and con- sequently it has its existence and operation only during the period of coverture; and whilst the legatee in this case remained discovert the separate estate was dormant and without effect, though it was capable of arising, and did arise, upon the happening of the mar- riage contemplated by the will ; and upon the termination of the coverture upon the death of the wife, such separate estate became absolutely void. Tullett v. Armstrong, 1 Beav., 1; s. c, on appeal, 4 Myl. & Cr. 397. It was certainly competent to the testator to have not only ex- cluded the marital rights of the husband during the coverture, but, by apt terms, to have carried such exclusion beyond that period, and excluded them altogether. There is nothing, however, in the terms of the will to manifest clearly such intent. The husband is the party declared by law to be entitled in the absence of some clear and positive limitation to exclude him, and if the separate estate terminated with the death of his wife, and there be no limitation of the estate inconsistent with the rights of the husband, who other than the husband can be entitled? His rights were simply suspended, 150 HUSBAND AND WIFE. in reference to this particular property, during coverture. It is true, the property could have been disposed of by the wife by virtue of the existence of the separate estate, and thus the husband's sus- pended rights could have been entirely defeated ; but that not hav- ing been done, upon the death of the wife, those rights were revived and became active. It being conceded that the husband would be entitled to the prop- erty in question, if it were not for the effect attributed to the will of Patrick Cooney, it becomes purely a question of construction; and as there is nothing on the face of the will, apart from the usual formula of declaring the separate estate during coverture, it follows that the husband's rights, though suspended up to the time of the death of the wife, have not been entirely defeated. The will making no disposition of the property on the death of the wife, and providing only for her exclusive dominion over it during coverture, " the right of the husband, as survivor, is a fixed and stable right, over which the court has no control, and of which he cannot be divested. The settlement cannot be extended, by construction, beyond the just and fair import of its provisions; and, clearly, the court cannot create a settlement or disposition of property, in violation of the jus mariti when none has been made by the party." So declared Chancellor Kent, in the case of Stewart v. Stewart, 7 Johns. Ch. Rep. 229; and the reasoning and principle of construction of that case have been fully sanctioned and approved of by the courts of this state, in Ward v. Thompson, 6 Gill & John. 357; Waters v. Tazewell, 9 Md. 291, and Jones v. Brown, 1 Md. Ch. Dec. 191; which cases govern and control this. Being of opinion that the surviving husband was entitled to the personal property of his wife at the time of her death, we shall affirm the decree appealed from, with costs to the appellees. Decree affirmed. JOHNSON v. VAIL. 14 N. J. Eq. 423. — 1862. The bill is filed on behalf of a married woman, by her husband and next friend, for an injunction to restrain an execution creditor of the husband from selling and disposing of property claimed to be the separate estate of the wife. The Chancellor. * * * 1. It is objected that the husband is a necessary party to the bill. The bill is exhibited and sworn to THE WIFE'S SEPARATE ESTATE IN EQUITY. I 5 I by the husband as the next friend of the wife; but he is not joined as a party in the bill, either as complainant or defendant. He can- not legally be joined as complainant, his interest, which is claimed by the defendant, being adverse to that of his wife. Persons having adverse or conflicting interests in reference to the subject-matter of the litigation ought not to join as complainants in the suit. Dames v. Quarter ma n, 4 Younge & Coll. 257; Grant v. Van Schoonhoven, 7 Paige, 257; Alston v. Jones, 3 Barb. Ch. R. 400. And if the husband and wife join in a suit as plaintiffs, or in an answer as co-defendants, it will be considered as the suit or the defence of the husband alone; and it will not prejudice a future claim by the wife in respect of her separate interest, nor will the wife be bound by any of the allegations therein in any future litigation. Pawlet v. Delaval, 2 Ves. sen. 666; Mole v. Smith, 1 Jac. & W. 648; Hughes v. Evans, 1 Sim. & Stu. 185; Reeve v. Dalley, 2 Ibid, 464; Wakey. Parker, 2 Keen, 73; England v. Downs, 1 Beavan, 96; Sigel v. Phelps. 7 Simons, 239; Owdeny. Campbell, 8 Simons, 551; 1 Daniell's Ch. Prac. 142. And in suit by the wife for her separate estate, the husband is a necessary defendant. .S". A. and Thorby v. Yeats, 1 Younge & Coll. 438. But the practice, where the husband unites with the wife, is not to dismiss the bill, but to give permission to the wife to amend by adding a next friend and making the husband a defendant. England v. Downs, 1 Beavan, 96; Wakey. Parker, 2 Keen, 73. Or, where no objection is interposed, to decree the fund to be paid to a trustee for the use of the wife. Griffith v. Wood, 2 Vesey, 452; Simons v. Horwood, 1 Keen, 7; Sigel v. Phelps, 7 Simons, 239. In Bern and Wife v. Heath, 6 Howard, 228, it was held, by the Su- preme Court of the United States, that it was no objection to a bill filed in relation to the separate property of the wife, that the hus- band is made a party to it with the wife. In delivering the opinion of the court, Mr. Justice McLean said: " Where the wife complains of the husband and asks relief against him, she must use the name of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This a matter of prac- tice within the discretion of the court. It is sanctioned in the sixty- third section of Story's Equity Pleadings, and by Fonblanque." In some of the earlier editions of Story's Equity Pleadings, the practice, as stated by Mr. Justice McLean, was certainly sanctioned by the language of the section referred to. It is stated to be the ordinary practice, at least for conformity's sake, in suits by or against the wife I52 HUSBAND AND WIFE. in regard to her separate property, to join the husband as a party plaintiff or defendant. But in the more recent editions of thetreatise the phraseology of the section is materially changed, with the very design of guarding against misapprehension, and conforming it to the well-settled rule of the English courts of equity. The rule is stated thus: " In practice, where the suit is brought by the wife for her separate property, the husband is sometimes made a co-plaintiff. But this practice is incorrect, and in all such cases she ought to sue as sole plaintiff by her next friend, and the husband should be made a party defendant, for he may contest that it is her separate prop- erty, and the claim may be incompatible with his marital rights." Story's Eq. PI. (6th ed.), sec. 63. * * * J 1 " In general, therefore, where the suit relates to the separate property of the wife, it is necessary that the bill should be filed in her name, by her next friend, otherwise, the defendant may demur, upon the ground that the wife might at any future time institute a new suit for the same matter, and that, upon such new suit being instituted, a decree in a cause over which her husband had the exclusive control and authority, would not operate as a valid bar against her subsequent claim. Where, however, the suit is for a chose in action of the wife, not settled to her separate use, the defendant cannot object to the husband's su- ing jointly with her as co-plaintiff; nor will her right to a settlement be preju- diced by the fact of her husband being so joined with her in the suit. Where the wife sues by her next friend, the husband must still be a party, and U is usual to make him a defendant; but a husband having no adverse interest to his wife, may be made a co-plaintiff. As a wife may sue her husband in respect of her separate property, so may a husband in a similar case sue his wife. Such suit, however, can only be in re- spect to his wife's separate estate; for a husband cannot have a discovery of his own estate against his wife. In those cases where it is necessary that a suit re- specting the property of a married woman should be instituted against her hus- band, or that the husband should be one of the defendants: as the wife, being under the disability of coverture, cannot sue alone, and she cannot sue under the protection of her husband, she must seek other protection, and the bill must be exhibited in her name, by her next friend, who is named as such in the bill, as in the case of an infant. A bill, however, cannot, as in the case of an infant, be filed by a next friend on behalf of a married woman, without her consent; and if a suit should be so instituted, upon special motion, supported by her affidavit of the matter, it will be dismissed." — Daniell's Chancery Practice, 4th Am. Ed., vol. 1, pp. ioy-10. THE WIFE'S STATUTORY SEPARATE ESTATE. 1 53 The Wife's Statutory Separate Estate. ANKENEY v. HANNON. 147 U. S. 118. — 1892. This was a suit in equity to charge the separate estate of a mar- ried woman with the payment of certain notes of which her husband was one of the makers, such estate having been acquired subse- quently to their execution. It arose out of the following facts: On the 25th of March, 1880, Joseph E. Hannon, Clara M. Hannon, and William H. Hannon, executed their three promissory notes, aggre- gating $14,969.31, dated at Xenia, Ohio, and payable to the order of Joseph E. Hannon, one of the makers. They were subsequently transferred to the complainants before maturity for a valuable con- sideration. Clara M. Hannon is the wife of Joseph E. Hannon, and at the time the notes were signed she possessed a small separate estate; and in each of the notes she inserted the following provis- ions: " Mrs. Clara M. Hannon signs this note with the intention of charging her separate estate both real and personal." The case thus presented the single question, whether the separate estate of the wife, Mrs. Clara M. Hannon, acquired by her by inherit- ance from her father, in 1882, was chargeable with the payment of the notes described, executed and delivered by her and others in March, 1880. Mr. Justice Field delivered the opinion of the court. At common law, a married woman is disabled from executing any promissory notes, either alone or in conjunction with her husband. A note or other contract signed by both is the obligation of the hus- band alone. And in the absence of legislation a separate estate to her can only be created by conveyance, devise, or contract, and remedies against such estate can only be enforced in equity. At the time Mrs. Hannon signed the notes in controversy, married women in Ohio were subject to their common-law disabilities, except with respect to certain statutory contracts, and had power to charge their separate estate only in accordance with the ordinary rules of equity. Subse- quently, in 1884, the laws of Ohio were amended, authorizing mar- ried women, during coverture, to contract in the same extent and in the same manner as if they were unmarried. (Amendatory sections Rev. Stats., 3108, 3109, 31 10 and 31 11.) And in March, 1887, it was further provided that "a husband or wife may enter into any engage- ment or transaction with the other, or with any other person, which 154 HUSBAND AND WIFE. either might if unmarried; subject, in transactions oetween them- selves, to the general rules which control the actions of persons occupying confidential relations with each other." But at the time the notes in question were signed by Mrs. Hannon the rights and liabilities of married women in Ohio, so far as they differed from the doctrine of the common law, were determined by the following sections of the Revised Statutes which embodied the provisions of the act known as the Keys act, passed April, 1861. These sections are as follows: "Section 3108. An estate or interest, legal or equitable, in real property belonging to a woman at her marriage, or which may have come to her during coverture, by conveyance, gift, devise or inherit- ance, or by purchase with her separate means or money, shall, together with all the rents and issues thereof, be and remain her separate property, and under her control ; and she may, in her own name, during coverture, make contracts for labor and materials for improving, repairing and cultivating the same, and also lease the same for any period not exceeding three years. This section shall not affect the estate by the curtesy of a husband in the real property of his wife after her decease; but during the ltfe of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him, unless she joins therein with him in the manner prescribed by law in regard to their own estate. "Section 3109. The personal property, including rights in action, belonging to a woman at her marriage, or coming to her during coverture, by gift, bequest or inheritance, or by purchase with her separate money or means, or due as the wages of her separate labor, or growing out of any violation of her personal rights, shall, together with all income, increase and profit thereof, be and remain her separate property and under her sole control; and shall not be liable to be taken by any process of law for the debts of her husband. This section shall not affect the title of the husband to personal property reduced to his possession with the express assent of his wife; but personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless, by the terms of said assent, full authority is given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit. " Section 31 10. The separate property of the wife shall be liable to be taken for any judgment rendered in an action against husband and wife upon a cause existing against her at their marriage, or for THE WIFE'S STATUTORY SEPARATE ESTATE. 1 55 a tort committed by her during coverture, or upon a contract made by her concerning her separate property, as provided in section 3108. " Section 311 1. A married woman, whose husband deserts her, or from intemperance or other cause becomes incapacitated, or neglects to provide for his family, may, in her own name, make contracts for her own labor, and the labor of her minor children, and in her own name sue for and collect her or their own earnings; and she may file a petition against her husband, in the Court of Common Pleas of the county in which she resides, alleging such desertion, incapacity or neglect, and upon proof thereof the court may enter a judgment vesting her with the rights, privileges and liabilities of a feme sole, as to acquiring, possessing and disposing of property, real and personal, making contracts, and being liable thereon, and suing and being sued in her own name; but after such judgment the hus- band shall not be liable upon any contracts so made by her in her own name, or for any tort thereafter committed by her." Sections 4996 and 5319 should also be quoted, as they are supposed by the appellants to have some bearing upon the questions pre- sented. Section 4996 is as follows: "A married woman cannot prosecute or defend by her next friend, but her husband must be joined with her, unless the action con- cerns her separate property, is upon her written obligation, con- cerns business in which she is a partner, is brought to set aside a deed or will, or to collect a legacy, or is between her and her hus- band." Section 5319 is as follows: "When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced as if she were unmarried, and her separate property and estate shall be liable for the judgment against her, but she shall be entitled to the benefit of all exemptions to heads of families." These last two sections originally were parts of an act passed in 1874. It has been held by the Supreme Court of Ohio that the legis- lation contained in these provisions, considered either by itself or in connection with the act of March 30, 1874, the provisions of which are embraced in sections 4996 and 5319 of the Revised Statutes, does not enlarge the capacity of married women to make contracts except in the instances specifically mentioned. The case of Levi v. Earl, 30 Ohio St. 147, maintains this position, after an elaborate analysis and consideration of the legislation on the powers and disabilities of married women in the state. That case was decided it is true, by the Supreme Court Commission of Ohio and not by 156 HUSBAND AND WIFE. the Supreme Court of the state, but that commission was ap- pointed by the governor of the state, under an amendment of the Constitution adopted to dispose of such part of the business on the docket of the Supreme Court as should, by arrangement between the commission and the court, be transferred to the commission. The amendment declares that the commission shall have like juris- diction and power in respect to such business as may be vested in the court. A decision of the commission upon a question properly pre- sented to it in a judicial proceeding is, therefore, entitled to the like consideration and weight as a decision upon the same question by the court itself, and is equally authoritative. The case cited, among other things, adjudges and declares (1) that by the provisions of law quoted the wife is authorized to make con- tracts in her own name for labor and materials for improving, repair- ing and cultivating her separate estate as defined by them, and for leasing the same for a term not exceeding three years, and that upon such contracts the wife is liable to an action at law and to a judgment and execution as a. feme sole, but that all her other engage- ments, debts or obligations are void at common law, the same as before the adoption of the provisions mentioned; (2) that by those provisions the marital rights of the husband were divested as to the wife's general estate, and the wife was invested with the control of the same, and could bind it not only by the contracts which she was authorized to make in her own name, but to the same extent as she could charge her separate estate in equity before the provisions were adopted; (3) that the power of a court of equity to charge the separate estate of a married woman as existing and exercised before those provisions were adopted still existed not only as to such sepa- rate property, but also as to her separate property as defined by those provisions, except as to such contracts as she was authorized to make in her own name, upon which a remedy at law was given by the statute. It has always been held by the Supreme Court of Ohio that sec- tions 4996 and 5319 of the Revised Statutes, which embody the pro- visions of the act of March 30, 1874, were intended simply as an amendment to the Code of Civil Procedure, and did not affect or enlarge the rights or liabilities of married women, but related merely to the remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136; Avery v. Vansickle, 35 Ohio St. 270. The powers and liabilities of married women not being affected in any particulars except those mentioned, by the legislation of Ohio previous to the execution of the notes in controversy, the defendant, Mrs. Hannon, did not charge her subsequently acquired estate at THE WIFE'S STATUTORY SEPARATE ESTATE. 1 57 law for their payment, when she signed them in connection with her husband. Even if under the legislation in question she would, by the decision in Williams v. Urmston, 35 Ohio St. 296, which is said to qualify, in some respects, the decision in Levi v. Earl, have charged at law her separate estate existing at the time of the execution of the notes in the absence of the express statement in them that she intended thus to charge it, there is nothing in the legislative pro- visions adopted which enlarges her power at law to charge any future acquired estate. The question then remains to be considered whether her after acquired estate is chargeable in equity. That is to be determined by the ordinary rules of equity, and we think it is clear that the contracts of married women are not chargeable in equity upon their subsequently acquired estates. The separate estate of a married woman, as we have stated, is, in the absence of legislation on the subject, created by conveyance, devise or contract. Its creation gives to her the beneficial use of the property which otherwise would not be brought under her con- trol. As to such property she is regarded in equity as a feme sole, and it was, therefore, formerly held that her general engagements, though not personally binding upon her, could be enforced against the property. This doctrine, however, has been modified in modern times. It is now held that to charge her separate estate with her engagement, it must have been made with an intention on her part to create a charge upon such estate; that is, with reference to the property, either for its improvement or for her benefit upon its credit. There has been much divergency of opinion and some con- flict both in the courts of England and of this country as to what is nec- essary to establish such intention on the part of the wife to charge her separate estate for her contract. It is conceded that there must have been an intention on her part to affect such a charge, other- wise her engagement will not have that effect. The numerous decisions in the High Court of Chancery of Eng- land have shown this divergency and conflict in a marked degree. Lord Thurlow placed the right of the wife to charge the property upon her right as owner to dispose of it without other authority. Hulme v. Tenant, 1 Bro. C. C. 16; Fettiplace v. Gorges, 3 Bro. C. C. 8. But this theory was afterwards rejected by Lord Loughborough, who denied the liability of a married woman's separate estate for her general parol engagements, and explained the previous cases upon the ground that the securities which the wife had executed operated as appointments of her separate property. Bolton v. Wil- liams, 2 Ves. jun. 138. This doctrine proceeded upon the assumption that the wife's 158 HUSBAND AND WIFE. separate estate was not liable for her general engagements, but only for such as were specifically charged in writing upon it. This theory Lord Brougham rejected, holding that there was no valid distinction between a written security, which the married woman was incapable of executing, and a promise by parol, and that mere parol engage- ment of the wife was equally effective to create a charge as her bond or note. Murray v. Barlee, 3 Myln & K. 209. The reasoning of Lord Brougham to establish his views was after- wards met and rejected by Lord (Tottenham. Owens v. Dickenson, 1 Craig & Ph. 48. The Court of Appeals of New York, in the case of Yale v. Dederer, 22 N. Y. 450, considered very fully the evidence which would be required to charge the separate estate of the wife upon her contract, and in its examination reviewed the various decisions of the English Court of Chancery, pointing out their many differences and con- flicts, and placed its decision upon this ground, that such estate could not be charged by contract unless the intention to charge it was stated in the contract itself or the consideration was one going to the direct benefit of the estate. In that case a married woman signed a promissory note as a surety for her husband, and it was held, though it was her intention to charge such estate, that such inten- tion did not take effect, as it was not expressed in the contract itself. In the case of Willard v. Eastliam, 15 Gray, 328, 335, the same question was elaborately considered by the Supreme Judicial Court of Massachusetts. In that case a debt was contracted by a married woman for the accommodation of another person without considera- tion received by her, and it was held that the contract could not be enforced in equity against her separate estate, unless made a charge upon it by an express instrument. And the court concludes, after a full consideration of the subject, by observing that the whole doc- trine of the liability of a married woman's separate estate to dis- charge her general engagements rests upon grounds which are arti- ficial and which depend upon implications too subtle and refined; and that " the true limitations upon the authority of a court of equity in relation to the subject are stated in great clearness and precision in the elaborate and well reasoned opinions of the Court of Appeals of New York in the case of Yale v. Dederer" which we have cited, and says: "Our conclusion is that when by the contract the debt is made expressly a charge upon the separate estate, or is expressly contracted upon its credit, or when the consideration goes to the benefit of such estate or to enhance its value, then equity will decree that it shall be paid from such estate or its income, to the extent to which the. power of disposal by the married woman may go. But THE WIFE'S STATUTORY SEPARATE ESTATE. 1 59 where she is a mere surety or makes the contracts for the accom- modation of another, without consideration received by her, the contract being void at law, equity will not enforce it against her estate, unless an express instrument makes the debt a charge upon it." We concur in these views as to the limitation on the authority of a court of equity in relation to the subject. In this case the amended bill avers that the defendant, Mrs. Hannon, executed the notes in question with the intention of charging her after-acquired property; but inasmuch as her contract is in writing, the averment can be regarded only as the pleader's conclusion, which must be determined by the application of the law to the undertaking itself. There is nothing in the written agreement which makes any reference to an after-acquired estate. In Pike v. Fitzgibbon, 17 Ch. D. 454, 460, the question as to the power of a married woman to bind her subsequently acquired estate was considered. In that case Lord Justice James said: "Another point also has been raised, of which we must dispose, and which has arisen, as it seems to me, from a misapprehension of some of the cases. It is said that a married woman having separate estate has not merely a power of contracting a debt to be paid out of that separate estate, but, having a separate estate, has acquired a sort of equitable status of capacity to contract debts, not in respect only of that separate estate, but in respect of any separate estate which she may thereafter in any way acquire. It is contended that because equity enables her, having estate settled to her separate use, to charge that estate and to contract debts payable out of it, therefore she is released altogether in the contemplation of equity from the disability of coverture, and is enabled in a court of equity to contract debts to be paid and satisfied out of any estate settled to her separate use which she may afterwards acquire, or, to carry the argument to its logical consequences, out of any property which may afterwards come to her. In my opinion there is no authority for that conten- tion, which appears to rise entirely from a misapprehension of the case of Pickard v. Hine, L. R. 5 Ch. 274, and one or two other cases which follow it, in which this point was never suggested. * * * I desire to have it distinctly understood as my opinion and the opinion of my colleagues, and, therefore, as the decision of this court, that in any future case the proper inquiry to be inserted is what was the separate estate which the married woman at the time of contracting the debt or engagement, and whether that sepa- rate estate or any part of it still remains capable of being reached by the judgment and execution of the court. That is all that the l6o HUSBAND AND WIFE. court can apply in payment of the debt." Lord Justice Brett, in his concurring opinion, said: "The decisions appear to me to come to this, that certain promises (I use the word ' promises ' in order to show that in my opinion they are not contracts) made by married women, and acted upon by the persons to whom they are made, on the faith of the fact known to them of her being possessed at the time of a separate estate, will be enforced against such sepa- rate estate as she was possessed of at that time, or so much of it as remained at the time of judgment recovered, whether such judgment be recovered during or after the cessation of the coverture. That proposition so stated does not apply to separate estate coming into existence after the promise which it is sought to enforce." p. 462. It is true that in that case [Pike v. Fitzgibbon), as stated by Lord Justice James, it did not appear that the appellant had, since the date of her engagement, acquired any property settled to her sepa- rate use, and had not asked by the appeal to vary the judgment as regards subsequently acquired property. "It is therefore suffi- cient," said the lord justice, "to state, as a warning in any future case, that the only separate property which can be reached is the separate property or the residue of the separate property, that a married woman had at the time of contracting the engagements which it is sought to enforce." But in King v. Lucas, 23 Ch. D. 712* 724, in the Court of Appeal, the question whether the engagements of a married woman could be charged upon her subsequently acquired estate, was actually involved, and the decision in Pike v. Fitzgibbon was held conclusive. Said Cotton, L. J. : " With respect to her sepa- rate estate she is treated as a feme sole, but it has been decided that it must be separate estate which belonged to her at the time of the making of the contract, and is still remaining at the time when the contract is enforced and judgment obtained. In Pike v. Fitz- gibbon it was held by a learned judge that all separate property could be charged which belonged to the married woman at the time when the contract was enforced, but that was held to be erroneous by the Court of Appeal, and the rule was laid down that the contract could be enforced only against the separate estate existing at the time of the contract. In the present case, therefore, there is no question as to any principle; the only question is whether certain property was the separate property of the lady when she made the contract." In view of the considerations stated and the decisions mentioned, and numerous others which might be cited, we are of opinion that in Ohio the separate property of a married woman could not be charged in equity by contracts executed previous to its existence, for the obvious reason that in reference to such property the con- THE WIFE'S EQUITY TO A SETTLEMENT. l6l tracts could not be made. The after-acquired estate was not at the time available in a court of equity to meet the contracts, for at that date it had no existence. The English Married Woman's Property act of 1882 provided that " every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown." And in section 1 (sub. sec. 4), it was declared that " every contract entered into by a married woman with respect to and to bind her separate property, shall bind not only the separate property which she is possessed of or entitled to at the date of contract, but also all separate property which she may thereafter acquire." And yet in Deakin v. Lakin, 30 Ch. D. 169, 171, it was held that this act did not enable a married woman, who had no existing separate prop- erty, to bind by a contract separate property afterwards acquired, and Pearson, J., said: " In my opinion, according to the true con- struction of the act, the contract which is to bind separate property must be entered into at a time when the married woman has existing separate property. If she has such property her contract will bind it. If she afterwards commits a breach of the contract, and pro- ceedings are taken against her for the breach of contract, any sepa- rate property which she has acquired since the date of the contract and which she has at the time when judgment is recovered against her, will be liable for the breach of the contract. But the act does not enable her, by means of a contract entered into at a time when she has no existing separate property, to bind any possible contingent separate property." It follows that the decree must be affirmed, and it is so ordered. The Wife's Eqtiity to a Settlement. POINDEXTER v. JEFFRIES. 15 Gratt. (Va.) 363.— 1859. In 185 1, John Bowyer died intestate leaving. real and personal estate. One of his children was Frances, the wife of G. B. Poin- dexter. In December, 185 1, G. B. Poindexter conveyed his interest in his wife's undivided portion of her father's real estate to F. B. Lewis. In September, 1852, in a suit brought by the administrator for partition of the real and personal estate, a decree for partition was made. Before this decree was executed, to wit, on October, 20, 1852, Poindexter conveyed his interest in his wife's portion of the personal estate to W. B. Poindexter and F. B. Lewis for the sole use [Domestic Relations — 11.] l62 HUSBAND AND WIFE. of herself and children. Shortly afterwards, the estate was par- titioned and the portion assigned to G. B. Poindexter and wife was 145-J acres of land and two slaves. April 16, 1853, Mrs. Poindexter filed a petition asking that the personal property apportioned to her be assigned to W. B. Poindexter and F. B. Lewis, trustees in the deed of October 20, 1852, in trust for the purposes expressed therein; and that such additional provision might be made for her out of the life estate of her husband in the real estate descended to her from her father, as the court might deem adequate. On the same day the report of the partition was confirmed, but subject to her rights to such future decree as the court might make upon her petition. On June 21, 1851, F. B. Lewis had obtained a decree against G. B. Poindexter and his sureties, Jeffries and Pollard, for $2,975.16; and the sureties, having satisfied the decree, had it registered for their benefit March 30, 1852, and levied upon one of the slaves which had been allotted to Poindexter and wife. The sale was suspended by injunction issued November 11, 1853, upon the petition of Poin- dexter and wife. In this state of things the bill in this case was filed in January, 1854, by Jeffries and Pollard against F. B. Lewis, in his own right, F. B. Lewis and W. B. Poindexter, as trustees in the deed of October 20, 1852, and G. B. Poindexter and wife, stating the facts and pray- ing that the said deed might be vacated; the injunction dissolved; the two slaves subjected to the execution of the plaintiffs; and the life interest of G. B. Poindexter in the land assigned to his wife, and his interest in the dower slaves, subjected to the claim of the plain- tiffs. After trial of this cause, a decree was obtained, from which Poindexter and wife applied for, and obtained, an appeal. Moncure, J. This case involves the doctrine of what is familiarly called "the wife's equity; " the origin and foundation of which are involved in much doubt, but which has been long and firmly estab- lished in England; 2 Story's Eq. sees. 1402, 1407, etc.; and though but recently recognized in this state, is now well established here also. Gregory s Adm r v. Mark's Adni ' r, 1 Rand. 355; Gallego v. Gallego's Ex' or, 2 Brock. R. 285; Browning v. Headley, 2 Rob. R. 340; JJo/d's Trustees. Geigcr s Adm ' r, 2 Gratt. 98; James, etc. v. Gibbs, 1 Pat. & Heath, 277. I will not attempt to investigate it fully, but will state only so much of it as seems to be pertinent to the present case. The authorities on the subject are collected and commented on in 1 Lead. Cas. in Eq., Am. ed., 1859, top paging, 453-501. The doctrine may be briefly stated thus: That a wife is entitled to the wife's equity to a settlement. 163 an equitable settlement out of her property, not only against her husband, but against all creditors of, and purchasers from him, whenever it is recoverable only in a court of equity, or the aid of that court is actually invoked for its recovery; unless the husband has become a purchaser of the property by an ante-nuptial contract with the wife. If it be recoverable at law, and the aid of a court of equity be not actually invoked to recover it, her equity does not exist. And it ceases to exist, though the property be recoverable in equity, whenever it has been actually recovered or received with- out any claim by her to a settlement. Whenever the husband, in right of his wife, has obtained possession of, and title to her prop- erty, his own title, jure mariti, becomes complete; and the property, to the extent of his title, is subject to his right of disposition, and to the claims of creditors and purchasers, like any other property of his any otherwise acquired. 2 Story's Eq. sec. 1403. If he or they have occasion to go into a court of equity for its assistance in regard to property to which his title has thus become complete, that court, cannot, as the price of its assistance, impose upon him or them the terms of a settlement out of it on the wife. The relief sought in such a case, being due ex debito justitice, must be decreed unconditionally. It may be laid down as a universal rule, that when property, by being reduced into the husband's possession, has once been released from the wife's equity, it can never again be subjected to it. I mean, of course, the wife's equity, technically so called; which overrides the claims of the husband and all persons claiming under or against him. 1 Lead. Cas. in Eq. 468, 498. Property acquired by the husband jure mariti, like any other property of his, may become liable to the equitable claims of the wife in a suit for a divorce a mensa et t/ioro, and perhaps in a suit for alimony. Id. 496-7. But such liability is subordinate to prior liens acquired under or against the husband. It seems to have been at one time considered that real estate was not subject to the wife's equity; and, at all events, that it was not so subject if it were not a trust estate, but one in its nature legal, which becomes from collateral circumstances the subject of a suit in equity; as where the legal estate happens to be outstanding in a mortgagee. But both of these points were decided affirmatively in the case of Sturgis v. CJiampneys, 5 Milne & Cr. 97; reported also in 9 Law J. N. S. p. 100. In that case the wife of an insolvent was entitled for her life to real estate which had been devised to her without the intervention of trustees; but the legal title was out- standing in certain mortgagees, and the assignee of the insolvent was obliged to file a bill to make his title (subject to the incumbrances) 164 HUSBAND AND WIFE. effectual. It was held by Lord Chancellor Cottenham (reversing the decision of the vice-chancellor), that the wife was entitled to a settlement out of the rents and profits of the estate during the coverture. In Hanson v. Keating, 4 Hare, 1, 30 Eng. Ch. R. 1, Vice- Chancellor Wigram, who had been counsel for the assignee of the husband in Sturgis v. Champneys, remarked, that prior to that case the opinion of the profession had, he believed, become settled, that estates in land were not subject to the same equity, upon the broad and important principle of preserving a strict analogy between legal and equitable estates in land. But, in deference to that judgment, he followed it, "although (he further remarked) if that case were out of the way, I should probably have decided otherwise. There would be no difficulty (he said), in distinguishing the facts of this case from those in Stnrgis v. Champneys; but the reasoning in that case would remain, and I cannot disregard it." That case has also been followed by other cases, and its authority seems to be now fully established in England. Freeman v. Fairlie y 11 Jur. 447; Newenham v. Fe/nberton, 17 Law J. Equity N. S. P. 99; s. c, 1 D. G. & Sm. 644. I have seen no American case in conflict with it. In Doid's Trustee v. Geiger's Adtn V, 2 Gratt. 98, no question was raised as to the liability of real estate to the wife's equity; but it was held not to be liable in that case, because the husband had the legal title and pos- session. See, also, Van Duzer v. Van Duzer, 6 Paige's R. 366; and Wickes v. Clarke, 8 Id. 161. In James, etc. v. Gibbs, etc., 1 Pat. & Heath, 277, the Special Court of Appeals referred to and recognized the case of Sturgis v. Cha moneys, and decreed a settlement on the wife out of her real estate. It is unnecessary, however, in my view of this case, to decide the question, and I therefore express no opinion upon it, but will assume, for the purposes of the case, that the doctrine is alike applicable to real and personal estate. As to the amount of the wife's property to be settled; the general rule at one time was to settle upon her one-half of the subject. 1 Roper on Husband and Wife, 260; 1 Leading Cas. in Eq., edition of 1859, p. 483. But this is a matter in the discretion of the court, which will take into consideration the amount of the wife's fortune already received by the husband, or any previous settlement which may have been made. Id. Accordingly, in Coster v. Coster, 9 Sim. R. 597, three-fourths of the fund was settled on the wife by Sir L. Shadwell, V. C. ; and in Napier v. Napier, 1 Drew. & Walk. 407, six hundred pounds out of a fund amounting to one thousand pounds, were set- tled on her by Ld. Ch. Sugden. It has been said that the court will not, except perhaps under very peculiar circumstances, settle the whole of the property on the wife. And in Beresfordv. Hobson, THE WIFE'S EQUITY TO A SETTLEMENT. 165 1 Madd. R. 362, in which the master, upon a reference, had approved of the settlement of the whole, Sir Thomas Plumer, V. C, sustained the exception taken to the report; observing, after an elaborate review of the authorities, that the question in most cases had been, how much the wife should have; and in determining that, the court had exercised a discretion, and had not tied itself, down to any pre- cise rule, but had never given the whole. But the whole has been given in many subsequent English cases, which are cited in 1 Lead. Cas. in Eq. 485. The American cases seem to be to the same effect, many of which are cited in the notes of Hare & Wallace to that valuable work, p. 499. This court, in Browning v. Headley, 2 Rob. R. 340, gave the whole to the wife. The true rule on the subject seems, therefore, to be, that the settlement should be reasonable and adequate, and may be of part or the whole of the property, according to the sound discretion of the court upon all the circumstances of the case. The usual practice is to refer it to a commissioner to inquire and report what would be a reasonable and adequate settle- ment. But the court may decide this question for itself, if there be sufficient material in the record for the purpose: and if it plainly appear that the whole property subject to the settlement is not more than adequate, a reference is, of course, unnecessary. As to when the provision for the wife should take effect, this, also, is a matter of discretion with the court upon all the circum- stances. If her husband lives with and supports her, it may be made to take effect when he ceases to do so, or at his death. But if he has deserted or ill-treated her, or is insolvent, or is unable or fails to support her, it will be directed to commence immediately. 1 Lead. Cas. in Eq. 499. The wife's equity is so substantial an interest that it will consti- tute a valuable consideration for a post-nuptial settlement by the husband upon her (made while the equity exists), which will be sus- tained against his creditors, to the extent of the equity, by a court of chancery. Id. 500. "The same circumstances which would induce the court (said the V. C. in JVic&esv. Clarke, 8 Paige's R. 166) to compel a settlement by the husband, or those claiming under him or in his right, will operate to uphold a deed of settle- ment already made, to the same extent that would be required if one should be directed to be made under the view of the court." The equity of the wife will be administered to her, not only in a suit in which the husband or his assignee is plaintiff, seeking the aid of a court of equity to recover her property; but generally, also, in a suit brought by her or her trustee for the purpose of asserting it. This was at one time doubted, it being supposed that the juris- 166 HUSBAND AND WIFE. diction rested solely on the ground that he who asks equity should do equity; but it has long since been firmly established. 2 Story's Eq. sec. 1414; 1 Roper on Husb. and Wife, 260; Elibank v. Montolieu, 5 Ves. R. 737; Newenham v. Pemberton, 17 Law J. Equity N. S. 99; 1 Lead. Cas. in Eq. 468. There seems to be one exception to this general rule, and that is, where the property is in its nature legal, but the aid of a court of equity is invoked for its recovery on some collateral ground of juris- diction; as in the case of a mortgage debt recovered in a foreclosure suit. There, the wife's equity attaches solely on the ground that he who asks equity must do equity, and therefore cannot be asserted in a suit brought by her. 1 Roper on Husb. and Wife, 258, 260. The argument of the counsel for the appellees, that the doctrine of the wife's equity, recognized and acted on by this court, is that which had been settled in England at the time of the establishment of our chancery court, and that we must therefore look only to the English decisions prior to that time to ascertain the law upon the subject, is, I think untenable. The subsequent English decisions are, of course, not binding upon us; but they are entitled to great respect, and at least as much on this question as on any other. Having stated so much of the doctrine as seems to be pertinent, I will now endeavor to apply the law to the facts of this case. There can be no question but that the doctrine applies to Mrs. Poin- dexter's portion of her father's personal estate. That estate at his death devolved on his personal representative. His distributees at law, of whom she was one, could recover it only in equity. She asserted her claim to an equitable settlement out of her distributive portion before it was received or recovered by her husband, and before the report of partition of the estate was confirmed by the court. And though the report was confirmed and her portion received before the decree sustaining the settlement which had been made upon her by her husband, yet the confirmation was expressly subject to the future order or decree of the court upon her petition for a settlement which she had previously filed. The deed of settlement of the 20th of October, 1852, was certainly executed before her husband received possession of her portion or any part of it; and that settlement, having afterwards been sustained by the decree of the court, is valid (if properly sustained), notwithstanding posses- sion of the property was received between the dates of the deed and of the decree. The argument of the appellee's counsel, that the administrator of Bowyer, being also one of his distributees, by bring- ing the suit for partition, elected henceforward to hold the subject as distributee, and not as administrator; that the possession of one THE WIFE'S EQUITY TO A SETTLEMENT. 167 parcener is the possession of all; and that therefore Poindexter was in possession of his wife's portion of the personal estate before she claimed her equity, cannot be sustained. The administrator did not cease, as such, to hold the personal estate of his intestate, so far as the record shows, until it was actually distributed ; until which time it was assets in his hands, and he was not bound to distribute it without refunding bonds. Nor can there be any doubt as to the propriety of the decree approving and confirming the said deed. The settlement thereby made was certainly not excessive, in view of all the circumstances of the case. And the husband being insolvent and unable to support his family, it was properly provided in the deed that the property should immediately enure to the benefit and maintenance of the wife and children. The deed may not be in such form as the court would have prescribed; but the wife being satisfied with it, and having petitioned for its confirmation, the court properly confirmed it, as it did not prejudice the rights of the husband's creditors. Then as to the real estate: Was the wife entitled to an equitable settlement out of her husband's interest in that estate (assuming the doctrine to be applicable to real estate)? She derived it by descent from her father, who at the time of his death was possessed thereof and had a legal title thereto. Her husband had no occasion to go into equity to obtain possession or complete his title. If any remedy had been necessary by reason of the act of a wrong-doer in taking or withholding possession, it would have been a legal remedy. But none was necessary. There was no interruption, either of the title or possession, both of which devolved at once upon the heirs-at-law of her father as coparceners. The possession of one was the pos- session of all the coparceners. 1 Lorn. Dig. 489, marg. And the seizin of one was sufficient to entitle the husband of another to be tenant by the curtesy. Id. 69, marg. sec. 14; 1 Bright on Husb. and Wife, p. 117, ch. 10, sec. 1, Nos. 6 and 7. But here all were actually seized, so far as the record shows. Momentary seizin is sufficient to complete the husband's title. Id. No. 9. But in this case there has been no interruption of his seizen. A husband by becoming possessed of his wife's freehold estate of inheritance dur- ing the coverture, acquires a freehold interest during their joint lives, if there be no issue of the marriage, and during his own life, if there be such issue. In the former case, he and his wife are seized in her right, and in the latter he is seized in his own right as tenant by the curtesy initiate, and may maintain an action in respect to his freehold interest in his own name only. Id. p. 112, ch. 9, Nos. 1, 6, 8 and 9. In both cases his interest is unconditional and unencum- l68 HUSBAND AND WIFE. bered, and is subject to his right of disposition and liable to his debts. In this case, there being issue of the marriage, the husband became tenant by the curtesy initiate of his wife's interest in her father's real estate, and his freehold estate thus acquired is not liable to his wife's equity. That such an estate is not so liable necessarily results from principles before stated, and has been expressly decided, not only in New York ; Van Duzer v. Van Duzer, 6 Paige's R. 366; Wickes v. Clarke, 8 Id. 161 ; but also by this court; Dold's Trustee v. Gciger s Adtn r, 2 Gratt. 98. In the last-mentioned case Dold and wife brought a suit to recover her share of her father's real and personal estate on the ground that he had died intestate. After a protracted litigation the intestacy was estab- lished and the plaintiffs succeeded. Pending the litigation the wife, by her next friend, filed a petition, praying that her share of the estate might be settled on her; and the husband by his answer assented. The Circuit Court decreed accordingly; but with a pro- viso that the rights of the husband's creditors which may have attached upon the property before the execution of the settlement, should not be affected. The decree further confirmed a division of the real estate that had been previously made, and directed the wife's share to be delivered to the trustee, to be held for her separate use. The suit for the account and the distribution of the personal and profits of the real estate, thereafter proceeded. The result of the suit showed that the share of the wife, exclusive of her share of the slaves, amounted to about $4,500, much the larger part of which arose from the rents and profits of the real estate, hire of negroes and interest on personalty accruing during the pendency of the suit; and that her share of the slaves was in value about $2,700. This subject was by the decree of the Circuit Court charged with a debt of the husband due by judgment, amounting in the aggregate, at the date of the decree, to about $1,500. The trustee of the wife appealed from the decree, which was affirmed by this court. Judge Stanard thus concluded his able opinion in the case, in which the other judges concurred: "In respect to the rents and profits of the real estate, he (the husband) was at law and in equity absolutely entitled to them. Of that real estate there had been actual possession, by virtue of such actual possession by one or more coparceners, and they were accountable at law to the husband for the rents and profits, and he might sue therefor without joining his wife. This subject ought to have been charged, though the principle of the dis- tributable share of the personal estate should be protected in the hands of the wife and her trustee by the relinquishment of the husband. To the tenancy by the curtesy of the husband in the real THE WIFE'S EQUITY TO A SETTLEMENT. 169 estate he had legal title ; and that was clearly chargeable with his debts, irrespective of his voluntary surrender thereof to the wife." The husband's title as tenant by the curtesy having thus become complete, and not being liable to the wife's equity while the estate was held in coparcenary, no state of things which could afterwards arise could subject his interest to that equity. It then stood upon the same footing with his other property, and became alike subject to his right of disposition and the claims of his creditors. Therefore, he or his assigns or judgment-creditors had a right to go into equity to have a partition of the real estate, and an allotment of his wife's portion thereof; and his judgment-creditors had a right to the aid of that court in enforcing the lien of their judgments by a sale of his interest, without being subjected to the condition of a settlement on his wife or any other condition whatever. A parcener acquires no new right, nor is his old right enlarged by a partition. He is entitled to a partition as a legal incident to his estate in coparce- nary; and it is merely a different mode of enjoying the estate, to which he may resort at his election. While the estate is held in coparcenary, his seizin is of an undivided interest, and pervades the whole estate. After the division and allotment, his seizin is con- fined to his several share, but as to that is exclusive. And so too a judgment-creditor of the husband coming into equity to enforce the lien of his judgment by a sale of an interest acquired by the husband in the wife's real estate, is seeking no new right nor to enlarge an old one, but is merely pursuing a remedy expressly given him by law to effectuate a legal lien upon his debtor's property. The wife hav- ing no inherent equity in such a case, can acquire none from the fact that she is a defendant to the suit. The maxim that he who asks equity must do equity does not apply to the case. Hanson v. Keat- ing, 30 Eng. Ch. R. 1. The wife's equity attaches, as we have seen, only when resort must be, or is actually, had to a court of equity to reduce her prop- erty into her husband's possession, or complete his title thereto, and not when resort may be had to that court for any purpose after such possession has been obtained and title completed. The Special Court of Appeals decided otherwise in James, etc. v. Gibbs, etc., 1 Pat. & Heath, 277; but, with the highest respect for the opinions of that court, I must say that I think the decision contrary to settled princi- ples of law, if not to the decision of this court in Do/d's Trustee v. Geiger s Adiri ' r, supra. And I am confirmed in this view by the fact that one of the learned judges who concurred in the decision of the Special Court, afterwards decided this case otherwise in the court below, and must therefore have changed his opinion. 170 HUSBAND AND WIFE. But it is argued by the counsel for the appellants, that as advance- ments had been made by the intestate to his children in his lifetime, a resort to a court of equity was indispensable to settle an account of the advancements, and ascertain the share to which each of the children was entitled in the partition of the estate; and that there- fore the wife's equity attached to Mrs. Poindexter's share as well of the real as of the personal estate. I do not think this conclusion correct. Notwithstanding the fact that advancements happened to have been made to the children, the heirs had a legal title to, and were in possession of the inheritance to the extent of their respective interests, from the death of the ancestor. The title and possession of each parcener as to his undivided share was then com- plete. The occasion which afterwards arose to go into a court of equity for a partition of the estate and an allotment of the several portions, cannot affect or impair the right of any person concerned. The account of advancements is a mere incident of the partition, affecting, of course, the extent and amount of the several portions, but not the title of the parceners. The distinction is between going into equity to complete the husband's title, and going there for some purpose in regard to the property after the title is completed. In the former case, the wife's equity attaches; in the latter, it does not. Going into a court of equity for an account of advancements and partition of real estate descended and in possession of the heirs, is a case of the former kind. And so is going there to enforce a judgment lien upon a husband's interest in his wife's portion of the estate. It is further argued, that it does not appear of what the advance- ments consisted, whether of real or personal estate; and that Poin- dexter and wife may have been entitled to more personal, and less real estate than they received in the division. See Code, p. 525, ch. 123, sec. 15. The answer to this argument is, that the partition was fairly made, was not excepted to, and has been confirmed by the court. It must therefore now be considered that they received their due and relative portion of the real and personal estate. I think there is no error in the decree of the Circuit Court, and am for affirming it. The other judges concurred in the opinion of Moncure, J. Decree affirmed. THE WIFE S DOMICILE. 171 The Wifes Domicile. SUTER v. SUTER. 72 Miss. 345.— 1894. Woods, J. This is an appeal from a decree of the court below allowing alimony and counsel fees pendente lite, in proceedings insti- tuted by a wife for divorce from her husband for desertion. From the bdl filed by the wife, and from her evidence offered in support of her application for alimony and counsel fees, it is per- fectly certain that the home of the husband is in New Orleans, La. ; and the domicile of the husband is that of the wife. From the same sources of information, it is clear that, shortly after the return of the husband from Biloxi to his business and home in New Orleans, he invited the wife to join him in their home in that city; that she was urged by Mr. Clarke to return to her husband and home, and declined to do so except upon condition of her husband's placing the title to the home in their joint names, in order to prevent any sale of the same by the husband without her consent; and that, in Sep- tember, 1890, the husband wrote the wife, stating his inability to bear the double expense of their living separate, and calling her attention to her former refusal to go to New Orleans, where he was compelled to remain to make a living, and urging the wife to come to him with their children. In his sworn answer, the husband states his efforts to have the wife return to him and his home, and avers his willingness to receive her now. It is a mistake on the part of the wife when she declares that her homestead is in Biloxi. Her domicile is that of her husband, and his is in New Orleans, and she cannot, to suit her convenience or pleasure, create a home distinct from her husband's by refusing to reside in the domicile of his choice. There is nothing in the case, as made by the wife, which consti- tutes this an exception in the general rule just announced. We have been unable to see any reasonable ground, suggested even by the wife's own showing, why she should not return to her husband's home and hers. That the husband has sold the residence property in New Orleans since her refusal to return to New Orleans is of no concern what- 172 HUSBAND AND WIFE. ever. The ownership of a residence property is not a prerequisite to the selection of a domicile and the establishment of a home. On the wife's showing, her bill and her application for alimony and counsel fees are a fraud upon the jurisdiction of the court. 1 Redfield, Ch. J., in POWELL v. POWELL. 29 Vt. 148, 150. — 1856. Now, while we recognize fully the right of the husband to direct the affairs of his own house, and to determine the place of the abode of the family, and that it is in general the duty of the wife to submit to such determinations, it is still not an arbitrary power which the husband exercises in these matters. He must exercise reason and discretion in regard to them. If there is any ground to conjecture that the husband requires the wife to reside where her health or her comfort will be jeoparded, or even where she seriously believes such results will follow which will almost of necessity produce the effect, and it is only upon that ground that she separates from him, the court cannot regard her desertion as continued from mere wil- fulness. Any man who has proper tenderness and affection for his wife would certainly not require her to reside near his relatives if her peace of mind were thereby seriously disturbed. This would be very far from compliance with the Scriptural exposition of the duty of husbands: "For this cause shall a man leave father and mother and cleave to his wife, and they twain shall be one flesh." And in the present case, as the wife alleges the vicinity of the husband's relatives as a reason why she cannot consent to come to Milton to live with him, and as every one at all experienced in such matters knows that it is not uncommon for the female relatives of the husband to create, either intentionally or accidentally, dis- 1 " The theory of the law, that husband and wife are one person, and, wherever the wife may be actually, she is constructively with her husband, is not appli- cable to a wife who remains in a place where she and her husband last lived to- gether, after he is gone, and brings a suit against him for a divorce founded on his misconduct while they were together. She may retain her old domicile, ac- quired when she and her husband were actually abiding in the same place, and is not compelled to follow him to a place where she never lived, merely because before she discovered his offence she intended to go there with him; but this ex- ception to the general law of domicile has no application in suits brought by the husband against the wife for her misconduct." — Syllabus in Burtis v. Burtis, 161 Mass. 508. CHASTISEMENT OR RESTRAINT OF THE WIFE. 1 73 quietude in the mind of the wife, and thereby to destroy her comfort and health often, and as there is no attempt here to show that this is a simulated excuse, we must treat it as made in good faith, and if so, we are not prepared to say that she is liable to be divorced for acting'upon it. Chastisement or Restraint of the Wife. THE PEOPLE v. WILLIAM WINTERS. 2 Park. Cr. Rep. (N. Y.) 10.— 1823. The prisoner was indicted for assault and battery on his wife. It appeared on the trial that the prisoner attempted to correct one of his children, and that his wife interfered and made such a noise as to alarm the neighborhood. She testified that he struck her on the head with his hand, and bruised her severely. Walworth, Circuit Judge, said a husband has no right to beat his wife or to inflict punishment upon her. But he may defend himself against her, and may restrain her from acts of violence towards himself and others, for he is accountable for her acts which injure others. The jury being satisfied by other testimony that the prisoner had done nothing more than was necessary to defend himself, in this case, rendered a verdict of not guilty. THE QUEEN v. JACKSON. L. R. (1891), 1 Q. B. 671. Argument on the return to a writ of habeas corpus, commanding Edmund Haughton Jackson to bring up the body of Emily Emma Maude Jackson, his wife, taken and detained in his custody. Lord Esher, M. R. 1 In this case it is really admitted that this lady is confined by the husband physically so as to take away her liberty. The only question for us to determine is whether in this case we can allow that to continue. The husband declares his inten- tion to continue it. He justifies such intention; and the proposition laid down on his behalf is that a husband has a right to take the person of his wife by force and keep her in confinement, in order to prevent her from absenting herself from him so as to deprive him of 1 Opinions were also given by Lord Halsbury, L. C, and Fry, L. J. t 174 HUSBAND AND WIFE. her society. A series of propositions have been quoted which, if true, make an English wife the slave, the abject slave, of her hus- band. One proposition that has been referred to is that a husband has a right to beat his wife. I do not believe this ever was the law. Then it was said that, if the wife was extravagant, the husband might confine her, though he could not imprison her. The con- finement there spoken of was clearly the deprivation of her liberty to go where she pleases. The counsel for the husband was obliged to admit that, if she was kept to one room, that would be imprison- ment; but he argued that, if she was only kept in the house, that was confinement only. That is a refinement too great for my intel- lect. I should say that confining a person to one house was imprison- ment, just as much as confining such person to one room. I do not believe that this contention is the law or ever was. It was said that by the law of England the husband has the custody of his wife. What must be meant by "custody" in that proposition so used to us? It must mean the same sort of custody as a gaoler has of a prisoner. I protest that there is no such law in England. Cochrane's Case, 8 Dowl. 630, was cited as deciding that the husband has a right to the custody, such custody, of his wife. I have read it carefully, and I think that it does so decide. The judgment, if I may respectfully say so, is not very exactly worded, and uses different expressions in many places where it means the same thing; but that seems to me to be the result of it. It appears to me, if I am right in attributing to it the meaning I have mentioned, that the decision in that case was wrong as to the law enunciated in it, and that it ought to be overruled. Sitting here, in the Court of Appeal, we are entitled to overrule it. I do not believe that an English husband has by law any such rights over his wife's person as have been suggested. I do not say that there may not be occasions on which he would have a right of restraint, though not of imprisonment. For instance, if a wife were about immediately to do something which would be to the dishonor of her husband, as if the husband saw his wife in the act of going to meet a paramour, I think he might seize her and pull her back. That is not the right that is contended for in this case. The right really now contended for is that he may imprison his wife by way of punishment, or if he thinks that she is going to absent herself from him, for any purpose, however innocent of moral offence, he may imprison her, and it must go to the full length that he may perpetually imprison her. I do not think that this is the law of England. But, assuming that there is such a right, the question arises whether the way in which and the circumstances under which it has been exercised in this case are such that the law ought to give back CHASTISEMENT OR RESTRAINT OF THE WIFE. 1 75 to the husband the custody of this lady against her will. The seizure was made on a Sunday afternoon when she was coming out of church, in the face of the whole congregation. He takes with him to assist him in making the seizure a young lawyer's clerk and another man. The wife is taken by the shoulders and dragged into a carriage, and falls on the floor of the carriage with her legs hanging out of the door. These have to be lifted in by, I believe, the clerk. Her arm is bruised in the struggle. She is then driven off to the husband's house, the lawyer's clerk riding in the carriage with them. Could anything be more insulting? The lawyer's clerk remains at the house, and a nurse is engaged to attend the wife, who is not ill. Obviously the lawyer's clerk and the nurse are to help keep watch over her and control her. That in itself is insulting. She goes to the window in the house, and, one of her relations being outside, the blind is immediately pulled down. I think that the circumstances of this seizure and detention were those of extreme insult, and I cannot think that it can be under such circumstances as these the husband has a right to keep his wife insultingly imprisoned until she undertakes to consort with him. In my opinion, the circumstances are such that the court ought not to give her back into his custody. He has obtained, it is true, a decree for restitution of conjugal rights; 1 but that gives him no power to take the law into his own hands and himself enforce the decree of the court by imprisonment. Formerly that decree might have been enforced by attachment for contempt; but that would have been an imprisonment by the court, not by the husband. The power of attachment in such cases is now taken away. The suggestion, therefore, must be that, though the court has no power to force the wife to restore conjugal rights by imprisonment, the husband himself has a right to take her by force and imprison her without the assistance of the court. I think that the passing of the act of parliament which took away the power of attachment in such cases is the strongest possible evidence to show that the legislature has no idea that a power would remain in the husband to imprison the wife for himself; and this tends to show that it is not and never was the law of England that the husband has such a right of seizing and imprisoning the wife as contended for 1 " It will readily be perceived that this court can deal with the controversy only so far as property is concerned. Over the conduct and acts of the par- ties, except with reference to their respective rights of property, and for the pur- pose of enforcing those rights when ascertained, this court can exercise no control. It has not jurisdiction to compel cohabitation where one party with- draws from the society of the other without justifiable cause nor to decree a restitution of conjugal rights withheld." — Cruger v. Douglas, 4 Edw. Ch. (X. Y.), 433- 506. 176 HUSBAND AND WIFE. in this case. If there is now a greater difficulty than there was in enforcing, or if it is now impossible effectively to enforce a decree for the restitution of conjugal rights, the legislature has caused this by act of parliament, and the legislature must deal with the mat- ter. For these reasons I agree that the return to the writ is bad, and that the husband has so acted that we ought not to give back the custody of this lady to him. Ante-nuptial Torts by the Wife. HAWK v. HARMAN. 5 Binney (Pa.) 43. — 1812. Upon the trial of this case, which was an action by Hawk and wife for slanderous words spoken of Elizabeth, the wife of Hawk, dum sola, by Catherine, the wife of Harman, (whether sole or covert at the time, the narr. did not state), the Common Pleas reserved the point, whether the husband is liable for slanderous word spoken by his wife before marriage. The verdict was for the plaintiff, forty shillings damages, and six cents costs; and the court, after argu- ment upon the reserved point, set aside the verdict, and gave judg- ment of nonsuit, upon which this writ of error was brought. Tilghman, C. J. The only question in this case is whether an action will lie against a man and his wife for slanderous words spoken by the wife before marriage. It is a question which does not admit of a doubt. The wife cannot be sued without her hus- band; and if the action does not lie against both, it follows that a woman by her own act may defeat the plaintiff's action, a principle not to be endured, unless a positive adjudication on the point could be produced in support of it. But the defendant in error relies on the general position to be found in some books of authority, that a man is liable to answer for his wife's contracts before marriage. To be sure he is, but it must not be inferred that he is not answera- ble for her torts also. The expressions do not necessarily bear that import, and in candid construction, they ought not to be so expounded. It would be attributing to respectable authors an unac- countable mistake, for there is not wanting express authority to the contrary. If a feme sole is sued for trespass, and marries, the action shall proceed against her, and if she is found guilty, judgment and execution shall be had against her alone without naming her hus- band. JDoyley v. White, Cro. Jac. 323, cited in Buller's Ni. Pri. 22. POST-NUPTIAL TORTS BY THE WIFE. 1 77 But if this suit is brought after the marriage, for a trespass commit- ted by the feme while sole, it shall be against the husband and wife, and what is somewhat singular, the writ charges the trespass as having been committed by both, because there is no other form of writ in the register. It was so decided 22 Ass. pi. 87, Jenk. Cent. 23, pi. 43, cited in 4 Vin. 185, C. 1, pi. 14. So if a/«?//^disseisoress mar- ries, the writ against the husband and wife shall be, quod disseisiverunt, and not quod uxor dutn sola disseisivit. In these cases there was no question about the action lying against the husband and wife; the only doubt was, whether the form of the writ was right. I am there- fore of opinion that the judgment should be reversed, and judg- ment entered here for the plaintiff below on the verdict. Post-nuptial Torts by the Wife. KOSMINSKY v. GOLDBERG. 44 Ark. 401. — 1884. Smith, J. This action was against the husband alone for defama- tory words spoken by the wife. The complaint did not show whether the defendant was present or absent at the time the slander was uttered; and a demurrer to it was sustained for non-joinder of the wife. The plaintiff proposed to amend by stating that the injurious words were spoken in the presence and hearing of the husband; but the amendment was stricken out. By this action we understand the court to have decided that the amendment stated no case materially different from that which had already been adjudged insufficient, and to have insisted that the wife be brought in as a party. The plaintiff declining to plead further, and electing to rest on his amended complaint, final judgment was entered dismissing the action. For the wife's torts, committed during coverture, the husband is responsible. Such torts may be committed under either of the fol- lowing circumstances: 1. Where the husband is absent and had no knowledge of the intended act, as in Head v. Briscoe, 5 Carr. & Payne, 484; (24 E. C. L. R. 667), where a man was held answerable for a libel published by his wife, although they were permanently living apart. See, also, Catterall v. Kenyan, 3 Q. B. 309; 40 E. C. L. R. 749. 2. Where the husband is absent, but where the tort is done under his direction and instigation, as in Handy v. Foley, 121 Mass. 259. 3. Where the husband was present, but the wife acted of her own volition, of which Cassin v. Delaney, 38 N. Y. 178, is an [Domestic Relations — 12.] 178 HUSBAND AND WIFE. example. And 4. Where the tort is committed in the company of the husband, and by his command or encouragement; for instances of which see Daily v. Houston, 58 Mo. 361; Brazil v. Moran, 8 Minn. 236. In the first three cases they are jointly liable, and the wife must be joined. She is in reality the offending party, and if the marriage should be dissolved by divorce or the death of either spouse before judgment recovered, the liability of the husband ceases. He is joined because she cannot be sued alone. But in the last case sup- posed, the law considers the tort as committed by the husband, and he alone is liable. To exempt her from liability, however, requires the concurrence of his presence and his command. A wrong done by his direction, but not in his company, does not excuse her; nor does his presence, if unaccompanied by his direction. The rule is stated too broadly in 2 Kent's Com. 149, where it is said, " If committed in his company, or by his order, he alone is liable." Here the injury is alleged to have been done in the husband's presence, but not at his instigation. Yet his presence raises a pre- sumption that she was acting under compulsion. And therefore the complaint states prima facie a cause of action against him alone. Of course this presumption may be rebutted by proof that he did not authorize or influence her act. Pomeroy's Remedies, sec. 320; Bliss on Code Pleading, sec. 85. The presumption of coercion, arising from the mere presence of the husband in the case of crimes, has been abolished by statute, and the excuse has been left to be made out by proofs. Gantt's Dig. sec. 1233; Edwards v. State, 27 Id. 493. Judgment reversed, with directions to require defendant to answer the amended complaint. Torts to the Wife. LAUGHLIN v. EATON. 54 Me. 156. — 1866. Barrows, J. To this action for malicious prosecution upon a charge of adultery, the defendants seasonably pleaded in abatement the coverture of the plaintiff. The presiding judge found for the defendants, sustained the plea and ordered the writ to be abated, to which order plaintiff excepts. TORTS TO THE WIFE. 1 79 The well-known general doctrine of the common law is, that where a wrong is committed against the person of the wife during coverture, as by beating her, slandering her reputation, or by malicious prose- cution, she cannot sue alone. For injuries to the wife occasioning to the husband a deprivation of the society of his wife, or of her assistance in his domestic affairs, or by which he is put to expense, he may have his separate action, as where a violent battery has caused a long continued illness of the wife or expense in her cure, or if she be maliciously indicted and thereby separated from him. or he put to expense in her defence. But if the action is brought for her personal suffering and injury, the husband and wife must join, and care should be taken not to include in the declaration a statement of any cause of action for which the husband alone would be entitled to recover. 1 Chitty's PI. 46, 47, 61. Horton &r> ux. v. Byles, 1 Siderfin, 387; Pussel & ux. v. Come, 1 Salkeld, 119; Hyde v. Scyssor, Cro. Jac. 538. When an injury is done to both, as slander or battery of husband and wife, separate actions must be brought, one by the husband alone for the injury to him, and one by the husband and wife for the injury to her. If both causes of action are joined, it is error. Ebersoll v. Krug 6r° ux., in error, 3 Binn. 555. There is nothing in this case which brings it within any known exception to the general rule above stated. John Laughlin has not been banished or abjured the country, or deserted his wife and gone beyond seas. So far as appears, he is still in frequent communication with her, sup- plying her with funds and only temporarily, though long absent. In Gregory v. Paul, 15 Mass. 30, cited for plaintiff, the wife of a foreigner, deserted by her husband in a foreign country, who had thereafter maintained herself as a single woman, and lived for five years in Massachusetts, her husband never having been within the United States, was holden competent to sue as a. fane sole. Sec. 10, chap. 61, of the R. S. of 1857, embodies the doctrine thus laid down, with some additions, as the law of this state. It is unnecessary to contrast the case of Gregory v. Paul with the one at bar, or consider further under what circumstances the absence of the husband from the state will excuse his non-joinder in a suit of this description. Nor do our other statutes authorizing married women in certain cases to maintain suits as if sole, enlarge the plaintiff's rights in a suit like this. Under sec. 3, ch. 61, a married woman, may, if she pleases, prosecute suits at law or in equity for the preservation and protection of her property as if unmarried, and may maintain an action in her own name to recover the wages of her personal labor, not performed for her own family. I So HUSBAND AND WIFE. But it was determined by this court, in Ballard 6° ux. v. Russell, 33 Maine, 196, that the statute enabling her to sue for the preserva- tion and protection of her property did not extend to rights of action for tort to the person. The plaintiff's counsel urges that, if enabled to sue in her own name, without joining her husband, for the protection of her prop- erty, much more ought she to have that power for the protection of her liberty and reputation, when her husband is out of the juris diction, or his consent cannot be had to join in the suit. The argument would be appropriately addressed to the legislature. The present state of the law requires that the entry in this case should be Exceptions overruled. Appleton, C. J., Kent, Walton, DiCKERSONand Danforth, JJ., concurred. 1 STROOP v. SWARTS. 12 Serg. & R. (Pa.) 76.— 1824. This was an action brought by Jacob Stroop and Mary, his wife, in the Court of Common Pleas of Perry county, to recover damages for slanderous words, alleged to have been spoken of the wife by Swarts, the defendant in error. The plaintiffs had a verdict in the court below for $175, but the court, on motion of the defendant's counsel, arrested the judgment, for which reason the present writ of error was sued out. On the case being called up for argument in this court, Penrose, for the defendant in error, alleged and proved, that before errors were assigned, Mary Stroop, one of the plaintiffs in error, was dead. He therefore moved that the writ of error be abated, and cited, Boas v. Hiester, 3 Serg. & Rawle, 271; 1 Chitty, PI. 61. Wadsworth and Metzger, contra, referred to 1 Binn. 172. Per Curiam. In this case, there was no judgment for the plain- tiffs in the court below, the judgment was arrested. Now, this court could not give judgment for the husband alone, even if they should think (which they do not), that the judgment ought not to have been arrested; because the wife, who was the meritorious cause, is dead, and the cause of action does not survive. If the wife had died after the judgment had been given for her husband and her, it would have been different. The judgment would then have survived to the husband. Writ of error abated. 1 See, also, Wolf v. Baueris, S2 Md. 481. TORTS AS BETWEEN HUSBAND AND WIFE. l8l Torts as Between Husband and Wife. ABBOTT v. ABBOTT. 67 Me. 304. — 1877. Peters, J. The defendants forcibly carried the plaintiff to an insane asylum. The case assumes the act to have been wrongful and wanton. The plaintiff and one of the defendants, at the time, were husband and wife; since then she was divorced. Can an action of tort, for such an injury, instituted after divorce, be sustained by her against her former husband? We have no doubt that it cannot be maintained. Precisely the same question was lately before the English court, and the decision and the reasons on which the decision is grounded meet with our unqualified approval. Phillips v. Barnet, 1 Q. B. D. 436. It is there held that the wife, after being divorced from her husband, cannot sue him for an assault committed upon her during coverture. In the course of the discussion in that case, Lush, J., says: " Now I cannot for a moment think that a divorce makes a marriage void ab initio ; it merely terminates the relation of hus- band and wife from the time of the divorce, and their future rights with regard to property are adjusted according to the decision of the court in each case;" Field, J., says: " I now think it clear that the real substantial ground why the wife cannot sue her husband is not merely a difficulty in the procedure, but the general principle of the common law, that husband and wife are one person;" and Black- burn, J., states the objection to be " not the technical one of parties, but because, being one person, one cannot sue the other." The theory upon which the present action is sought to be main- tained is, that coverture merely suspends and does not destroy the remedy of the wife against her husband. But the error in the pro- position is the supposition that a cause of action or a right of action ever exists in such a case. There is not only no civil remedy, but there is no civil right, during coverture, to be redressed at any time. There is, therefore, nothing to be suspended. Divorce cannot make that a cause of action which was not a cause of action before divorce. The legal character of an act of violence by husband upon wife and of the consequences that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any. The doctrine advocated by the plaintiff finds no support from any of the principles of the common law. According to the oldest au- 1 82 HUSBAND AND WIFE. thorities, the being of the wife became, by marriage, merged in the being of the husband. Her disabilities were about complete. By the earliest edicts of courts, he had a right to strike her as a punishment for her conduct, and her only remedy was, that "she hath retaliation to beat him again if she dare." And Chancellor Kent lays down the doctrine, not contradicted or challenged in any of the editions of his commentaries, that, "as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her con- duct be such as to require it, unless he renounces that control by articles of separation, or it be taken from him by a qualified divorce." 2 Kent Com. 180. But there has been for many years a gradual evo- lution of the law going on, for the amelioration of the married woman's condition, until it is now, undoubtedly, the law of England and of all the American states, that the husband has no right to strike his wife, to punish her, under any circumstances or provocation whatever. See, upon this subject, the cases collected in a learned and instructive note to the case of Commonwealth v. Barry, in 2 Green's Cr. L. Reports, 286. Still, the state of the old common law serves to show the basis upon which the marriage relation subsisted; and we do not perceive that there has been, either by legislative enact- ment or by the growth of the law in adapting itself to the present condition of society, any change in that relation which can afford the plaintiff a remedy. So to speak, marriage acts as a perpetually operating discharge of all wrongs between man and wife, committed by one upon the other. As said by Settle, J., in State v. Oliver, 70 N. C. 60, "it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." We are not convinced that it is desirable to have the law as the plaintiff contends it to be. There is no necessity for it. Practically, the married woman has remedy enough. The criminal courts are open to her. She has the privilege of the writ of habeas corpus, if unlawfully restrained. As a last resort, if need be, she can prose- cute at her husband's expense a suit for divorce. If a divorce is decreed to her, she has dower in all his estate, and all her needs and all her causes of complaint, including any cruelties suffered, can be considered by the court, and compensation in the nature of alimony allowed for them. In this way all matters would be settled in one suit as a finality. It would be a poor policy for the law to grant the remedy asked for in this case. If such a cause of action exists, others do. If the wife can sue the husband, he can sue her. If an assault was action- TORTS AS BETWEEN HUSBAND AND WIFE. 1 83 able, then would slander and libel and other torts be. Instead of set- tling, a divorce would very much unsettle all matters between married parties. The private matters of the whole period of married exist- ence might be exposed by suits. The statute of limitations could not cut off actions, because during coverture the statute would not run. With divorces as common as they are nowadays, there would be new harvests of litigation. If such a precedent was permitted, we do not see why any wife surviving the husband could not main- tain a suit against his executors or administrators for defamation, or cruelty, or assault, or deprivations that she may have wrongfully suffered at the hands of the husband; and this would add a new method by which estates could be plundered. We believe the rule, which forbids all such opportunities for law suits and speculations to be wise and salutary and to stand on the solid foundations of the law. The plaintiff invokes the case of Blake v. Blake, 64 Maine, 177, as supporting her right to sue. That was a suit in assumpsit. In mat- ters of contract there may be a cause of action during coverture, not enforceable by the ordinary methods until afterwards. The com- mon law has been so far abrogated by the force of various legislative acts as to allow contracts to be made by husband and wife with each other. And, to a certain extent, contracts between man and wife always were upheld in courts of chancery. That case, therefore, differs from this. Then, if the husband is not liable, the question arises whether the codefendants are liable in this action. We think it follows from the previous reasoning that they are not. The true test as to their liability is, whether an action could have been maintained against them at the time of the act complained of. It is clear that no action was then maintainable. If the co-defendants had been then sued, the action must have been in the name of the husband and wife, and the husband would have sued to recover damages for an injury actually committed by himself. Husband and wife must declare that the injury was ad damnum ipsorum. She cannot, at common law, sue in her own name alone, nor in his without his consent. She cannot appoint an attorney, ordinarily, but he must do it for her. His conduct and admissions can affect the suit. He can release the cause of action and she cannot. She could do no act to redress an injury to her without his concurrence. Nor has the common law been changed in any of these respects until 1876; which was after this action was commenced. Laws of 1876, ch. 112. The damages recoverable in an action would have belonged to him, and not to her. And, at the same time, if she had committed a tort, he would have 184 HUSBAND AND WIFE. been civilly liable for it. It is very certain, therefore, that no action could ever have been sustained against them in his name. They merely aided and assisted him. But if there was no injury to him there was none to her. They were one. Without doubt, after the death of the husband, a wife may maintain an action in her own name for a wrong committed upon her while her husband was alive, if no action was instituted nor the cause of action released during his lifetime; and undoubtedly the same right follows after a divorce a vinculo matrimonii. But she can only recover for such a wrong as she and her husband could have recovered for in their joint names while the marriage relation subsisted. She succeeds after death or divorce to just such rights as existed before that time. The language of the law is that the right survives to her. But there must be some right in existence to survive. Here there was none. A thing cannot continue after an event which does not exist before. It would not be the survival of a claim, but would be one newly created. Norcross v. Stuart, 50 Maine, 87; Marshall v. Oakes, 51 Maine, 308; Ballard v. Russell, 33 Maine, 196; LaugfUin v. Eaton, 54 Maine, 156; JVestx. Jordan, 62 Maine, 484; Hasbrouck v. Weaver, 10 Johns. 247; Snyder v. Sponable, 1 Hill (N. Y.), 567; Bacon Ab. Baron and Feme, K. ; Shaddock v. Clifton, 22 Wis. 114. Plaintiff nonsuit. Appleton, C. J., Walton, Dickerson and Virgin, JJ., con- curred. Barrows, J., concurred in the result. Torts to the Husband in His Marital Relation. SKOGLUND v. MINNEAPOLIS STREET RY. CO. 45 Minn. 330. — 1891. Action brought in the District Court for Hennepin county, to recover $3,400 damages for injuries to plaintiff's wife. The plaintiff appeals from an order by Lochren, J., refusing a new trial after a dismissal ordered at the trial. Gilfillan, C. J. The plaintiff and his wife, while riding in one of defendant's cars, were both at the same time injured by the same accident or act of negligence of defendant. Plaintiff brought an action'and recovered for the injury to himself. He brings this TORTS TO THE HUSBAND IN MARITAL RELATION. 1 85 action alleging the negligence of the defendant, the injury to his wife, in consequence whereof he lost her services and society, and was put to expenses for physicians and medicines and the care of his wife. In its answer the defendant alleged the former action and recovery by plaintiff in bar of this action, and the court below held it a bar, and ordered judgment for defendant on the pleadings. This appeal is from an order denying plaintiff's motion for a new trial. The case raises the question, Was the cause of action in the first action the same as in this ? Is this an attempt to recover damages that belonged to that cause of action? We think the decision of the court below was erroneous, not because one action was to recover for an injury to what are termed the absolute rights of plaintiff, and the other for injury to his relative rights, or rights he possessed by reason of his relation to his wife, but because his right to recover in this case will depend on a different state of facts from those which would sustain a recovery in the other case. In the action for injury to himself all he needed to show, in order to recover nominal damages at least, was the negligence of the defendant and the consequent injury to himself. But proof of the negligence and injury to the wife would not sustain the husband's action in this case. The cause of the action which those facts alone show belongs to the wife. Those facts go to make up the husband's cause of action, but alone they are not enough. In addition to them there must exist the fact that, by reason of the injury so caused, he has been deprived of her society or services, or has been put to expense. Such loss is of the substance of his cause of action. As said in Toddy. Redford, 11 Mod. 264: "Husband and wife cannot join in assault and battery per quod consortium amisit, for the per quod in such case is the gist of the action." In other words, the gist of the husband's cause of action on account of an injury to his wife is not the injury itself, but the consequence of the injury in depriving him of his common- law right to her society or services, or in imposing on him the com- mon-law duty to care for her. A case may easily be imagined where, for an injury to her person, a cause of action — a technical cause of action at least — would instantly accrue to the wife, but where none would ever accrue to the husband, for the reason that none of the above injurious consequences to his relative rights would follow. Where a cause of action arises from a wrongful injury, it arises at once; and in such case the subsequently ascertained or developed consequences of the injury are items that might exist without them. But in an action by a husband on account of an injury to his wife, the consequences of loss of her society or services are not items of damages pertaining to an already existing cause of 1 86 HUSBAND AND WIFE. action, or to a cause of action which might exist without them, but they are essential to the cause of action itself, which cannot arise until such consequences have followed the injury. If it could be said that the plaintiff's cause of action in his first action arose upon the negligence alone, then all the injurious consequences of that negligence, the injury to his person, the loss of his wife's society and services, caused by the injury to her person, might be regarded as items of damage in that cause of action. But no cause of action could accrue upon the negligence alone. That cause of action accrued only upon injury to his person caused by the negligence, and, when they concurred, his cause of action was complete. The loss of his wife's services had no connection with that injury. That cause of action was not a consequence of it, and not an item of damage pertaining to it. His right to recover for such loss was independent, and would have existed had that cause of action not accrued. We have been able to find but two cases in the United States analogous to this. In Cincinnati, etc. R. Co. v. Chester, 57 Ind. 297, the plaintiff had joined in one count a cause of action for an injury to himself with a claim for damages for loss of services of his wife, and for expenses in healing injuries to his child ; the three having been injured at the same time by the same negligence of defendant. On defendant's motion to require plaintiff to state the separate claims for damage in separate counts or paragraphs, the Supreme Court held the motion properly denied, saying: "It seems to us * * * they would really constitute but a single cause of action." Touniof Newbury v. Conn. etc. R. Co., 25 Vt. 377, was an action by the town to recover damages it had been compelled to pay for an injury to the person caused by a defect in a highway which, as between it and the town, defendant was under a duty to keep in repair. Husband and wife were at the same time injured in consequence of the defect. The husband sued the town for the injury to himself, recovered judg- ment, which the town paid, and sued and recovered against defendant for that. The husband also sued the town and recovered judgment on account of the injury to his wife, and the town paid it, and sued defendant for it. The defendant pleaded in bar the former recovery against it. Speaking of the recovery against the town on account of the injury to the wife, in reference to the recovery for injury to the husband, the court, Redfield, C. J., said: " For it is as much a distinct matter as if the persons had been strangers to each other, and as much, I think, as if the persons had been injured at different times, by reason of the same neglect of defendant." The two cases seem directly opposed to each other, though neither is particularly TORTS TO THE HUSBAND IN MARITAL RELATION. 1 87 satisfactory as an authority. So far as they determine the question here involved, the latter is more consistent with principle. Order reversed. 1 RINEHART v. BILLS. 82 Mo. 534. — 1884. Martin, C. On the 26th day of January, 1880, the plaintiff filed a complaint in equity against the defendant. In this complaint another party was originally included as defendant, but was dis- charged before trial. The object of the suit was to enjoin the trans- fer and collection of a certain promissory note in the sum of $550, made by the plaintiff, to enforce its surrender and cancellation, and obtain a judgment for a part payment indorsed upon it. It is alleged in the petition that the note was without consideration, and was obtained by false representations, by threats of suit, and of personal violence. The defendant, in his answer, denied the allegations of the petition and recited the facts constituting the consideration of the note, which, in his own language, read as follows: " Defendant, further answering, says: That on or about the nth day of November, 1879, he learned for the first time that plaintiff, for a long time thereto, to wit, for eighteen months, then last past, had been making love to his (defendant's) wife, whenever and wherever he could meet her. That he had plied every art and used every device in his power to win her love and esteem and to alienate and estrange her from her husband. That he had told her, at divers times and places, that he loved her deeply, devotedly, madly, and that he could not live without her. That plaintiff had written her love-letters on divers occasions; had given her a fine gold finger- ring, and desired to leave and abandon his own wife and children, and take defendant's wife and go to a new country where they would not be known, and could marry and live together as man and wife. 1 In Kujek v. Goldman, 150 N. Y. 176 (1896), it is held that one who, in the be- lief that a woman is virtuous, is induced to marry her by the false representa- tions of a third person, by whom she is at the time pregnant, may maintain an action for damages against the wrongdoer upon the broad ground of the loss of consortium, to which the husband is entitled, and of which, by the fraud complained of, he has been deprived. In Holleman v. Harward, 25 S. E. Rep. 972 (N. C. 1S96), it is held that an ac- tion for damages will lie at the suit of a husband against a druggist who, in violation of the express orders of the husband, has sold laudanum to the wife, in consequence of which she has become a confirmed subject of the opium habit, resulting in the loss of her services and companionship. 188 HUSBAND AND WIFE. That plaintiff was rich and would maintain her in laxury and ease, and she could live like a lady without labor and toil. Defendant, further answering, states that plaintiff, by his persistent efforts, finally succeeded in alienating and estranging the love and affections of defendant's wife from defendant, and procured, in the manner and by the means aforesaid, her consent to leave and desert her hus- band and elope with plaintiff." The answer goes on to recite that she had relented her rash promise to elope with plaintiff, had confessed everything to her hus- band, and begged to remain with him as his wife under the security of pardon and forgiveness. It is further alleged in substance that the defendant, smarting under the wrongs inflicted upon him by the plaintiff, repaired to the plaintiff's residence with his attorney, with a view of settling for these wrongs without suit; that in the interview the plaintiff admitted the facts as charged against him, and agreed to pay defendant, in liquidation of all damages by him sustained, and in final settlement thereof, the sum of $600; that he paid down $50 and gave the note in controversy for the remaining $550, payable four months from date; that he afterwards paid $205 on account of the note, which payment was endorsed on the same. The answer concludes with a prayer that the injunction be dissolved and judg- ment be rendered in defendant's favor, in the amount of the note remaining unpaid, which is stated to be $345 with interest. The plaintiff interposed a demurrer to this answer, which was overruled. The case was then tried by the court without the inter- vention of a jury. The court found the issues in favor of defend- ant, declaring in its decree that the matters and allegations in plaintiff's petition are untrue and not sustained by the evidence. The injunction was dissolved and the sum of $40.05 was assessed as damages on the injunction bond against the plaintiff and his sure- ties. It was also adjudged that defendant recover of plaintiff the balance due on the note sought to be enjoined. The bill of excep- tions does not contain the evidence, but merely recites that evidence was submitted by both parties tending to prove the allegations of their pleadings. Only one question is presented to us in the record, for determi- nation. The question involves the sufficiency of the defence, and is raised on the demurrer and in the motions made after judgment. The plaintiff contends that as the answer fails to show that defend- ant's wife had been actually debauched or seduced away from him, no wrong had been inflicted upon him, for which an action lies; and that the note taken in settlement of the supposed wrong was void as being without consideration. This position cannot be maintained TORTS TO THE HUSBAND IN MARITAL RELATION. 1 89 upon either principle or authority. The injury to defendant consists in the alienation of his wife's affections with malice or improper motives. Debauchery and elopement when they occur are only the immediate and legitimate consequences of the wrong. That the injury in this instance did not culminate in adultery and elopement, is a fact not due to the plaintiff's forbearance, but to the wife's pru- dent reflection and laudable repentance. The alienation of the wife's affections, for which the law gives redress, may be accomplished notwithstanding her continued residence under her husband's roof. Indeed it has been not unfrequently remarked by authors and jurists, that such continued residence after the alienation has been effected, so far from leaving the husband without a good cause of action, contributes an aggravation to his injury, from which an elopement might well be accepted in the nature of an alleviation. Schouler's Dom. Rel. 57; Cooley on Torts, 224; Hoard x . Peck, 56 Barb. 202; Hecrmance v. James, 47 Barb. 120. I think it would be difficult to regard it in any other light in the absence of contrition or change of heart. The demurrer admits the salacious and seductive solicitations of the plaintiff, extending over a period of eighteen months. It also admits the fact of actual estrangement and alienation which constitutes the essence of the offence. Everything which follows afterwards can be only in the nature of aggravation, mitigation or reparation of the wrong in- flicted upon the sanctity of the defendant's home. I may add here by way of allusion to the consideration of the note, that the compromise of a doubtful claim asserted in good faith, furnishes a valuable consideration to support a promise. 1 Par. Cont. 438, sec. 4 (6th ed.) The judgment is affirmed. All concur. FOOT v. CARD. 58 Conn. i. — 1889. Action for the alienation by the defendant of the affections of the plaintiff's husband. Pardee, J. * * * For the sole purpose of testing the sufficiency of the pleadings the defendant admits by her demurrer that from 1872 to this present she has alienated from the plaintiff the conjugal affec- tion of her husband, induced him to withhold from her his conjugal society, and herself has since lived in continual adultery with him. She denies, however, that the law has any form or mode of redress 190 HUSBAND AND WIFE. for this wrong. The case is reserved for the advice of this court as to the judgment to be rendered. So far forth as the husband is concerned, from time immemorial the law has regarded his right to the conjugal affection and society of his wife as a valuable property, and has compelled the man who has injured it to make compensation. Whatever inequalities of right as to property may result from the marriage contract, husband and wife are equal in rights in one respect, namely, each owes to the other the fullest possible measure of conjugal affection and society; the husband to the wife all that the wife owes to him. Upon princi- ple this right in the wife is equally valuable to her, as property, as is that of the husband to him. Her right being the same as his in kind, degree and value, there would seem to be no valid reason why the law should deny to her the redress which it affords to him. But from time to time courts, not denying the right of the wife in this regard, not denying that it could be injured, have nevertheless declared that the law neither would nor could devise and enforce any form of action by which she might obtain damages. In 3 Blackstone's Commentaries, 143, the reason for such denial is thus stated. " The inferior hath no kind of property in the com- pany, care or assistance of the superior, as the superior is held to have in those of the inferior; therefore, the inferior can suffer no loss or injury." Inasmuch as by universal consent it is of the essence of every marriage contract that the parties thereto shall, in regard to this particular matter of conjugal society and affection, stand upon an equality, we are unable to find any support for the denial in this reason, and the right, the injury, and the consequent damage, being admitted, then comes into operation another rule, namely, that the law will permit no one to obtain redress for wrong except by its instrumentality, and it will furnish a mode for obtaining adequate redress for every wrong. This rule, lying at the foundation of all law, is more potent than, and takes precedence of, the reason that the wife is in this regard without the pale of the law because of her inferiority. In Lynch v. Knight, 9 House of Lords Cases, 589, the wife, with whom the husband was joined for conformity, complained that the defendant, a man, had alienated from her the conjugal affection of her husband and deprived her of his conjugal society by falsely asserting to him that she had been guilty of unchaste conduct; and asked damages. The defendant had judgment for the reason that the court was of opinion that the statement by the defendant to the TORTS TO THE HUSBAND IN MARITAL RELATION. I9I husband did not, as a fact, occasion the alienation of affection and consequent separation complained of. In dismissing the case for this reason the lord chancellor said: "Although this is a case of first impression, if it can be shown that there is presented to us a case of loss and injury from the act complained of, we are bound to say that this action lies. Nor can I allow that the loss of consortium, or conjugal society, can give a cause of action to the hus- band alone. * * * The loss of conjugal society is not a pecu- niary loss, but I think it may be a loss which the law may recognize to the wife as well as to the husband." Lord Cranworth said: " In the view I take of this I do not feel called upon to express a decided opinion on this point. I believe your lordships are not all agreed on it; and I will therefore only say that I am strongly inclined to think that the view taken by my late noble friend " (the lord chancellor) "was correct." Wherever there is a valuable right and an injury to it, with con- sequent damage, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete repa- ration. A technicality must not be permitted to work a denial of justice. The defendant has no possible interest in requiring the hus- band to be co-plaintiff, other than that she should have security for her costs in this suit, and be protected from a second judgment upon the same cause of action in his name. As she is in no danger of a second judgment, and can compel the plaintiff to give security for costs, it is simply an empty technicality which she here interposes. There are good reasons for the rule that the husband should join in a complaint for damages resulting from an injury to the person, property, reputation or feelings of the wife in every case other than that before us. Whenever in any of these she suffers, presumably he suffers; he has a direct pecuniary interest in the result; and the defendant is entitled to protection from a second judgment. But, in the case before us, it is the pith and marrow of the complaint that in alienating the husband's conjugal affection from the wife, in inducing him to deny his conjugal society to her, in persuading him to give his adulterous affections and society to the defendant, the latter has inflicted upon the plaintiff an injury by which from the nature of the case it is impossible for the husband to suffer injury; for which it is impossible for him to ask redress either for himself or for his wife. To ask in his name would be to plant the seeds of death in the cause at the outset, and the law does not compel those who have suffered wrong so to ask for redress as to insure denial. In a case of this kind the wife can only ask for damages by and for herself; the law cannot make redress otherwise than to her solely, I92 HUSBAND AND WIFE. apart from all others, especially apart from her husband. For no theory of the law as to the merger of the rights of the wife in those of the husband could include her right to his conjugal affection and society. Although all other debts and rights to her might go to him, there yet remained this particular debt from him to her abso- lutely alone and beyond the reach of the law of merger. So long as she on her part kept the marriage contract no interest in this right can be taken from her; the husband cannot acquire any interest in it; she cannot transfer any. Of legal necessity, therefore, damages for injury to this right must be to her solely. If the law should permit the husband to share therein, it would be to the extent of such share to deny justice. This the law may not do. Moreover, even if it be so that upon the re- covery of damages by the wife for this injury to her sole right, the law would give to the husband the custody thereof as her trustee, that would not be a sufficient answer to the action in its present form. It is the contention of the defendant that the admission by the plaintiff, that she and her husband are still living together, is an admission that she now has and enjoys all that the marriage contract can, or intended to, secure to her; and that she has neither in law nor in fact suffered any injury. But this admission is to be con- sidered in the light of that made by the defendant, namely, that she has during the last fifteen years lived in continual adulterous inter- course with the husband — an intercourse procured by her influence over him. Upon this admission it becomes certain that whatever may have been the measure or quality of the remnant of conjugal affection and society permitted to the plaintiff by the defendant, as a matter of fact, and of law as well, the plaintiff has been deprived of the conjugal affection and society which the marriage contract entitled her to enjoy and required her husband to give; and that a valuable right, absolutely sole in her and incapable of division, has been injured. It is not a prerequisite to the right of the plaintiff to maintain this suit in her own name that she should have been abandoned by her husband in the literal sense, nor that she should have actually sepa- rated herself from him by or without a decree of divorce. If she has suffered the wrong complained of her right to redress is abso- lute; it can not be made to depend upon any of these conditions. As long as she keeps her marriage contract, so long she has the right to the conjugal society and affection of her husband. Possibly she may regain these. This possibility is her valuable right. The defendant may not demand that she shall sacrifice it for the future as the price of redress for injuries in the past. Upon the pleadings TORTS TO THE HUSBAND IN MARITAL RELATION. 1 93 there is a valuable right in the wife solely, and an injury thereto for which damages must be given to her solely, notwithstanding the fact that she is living with her husband; therefore, the law cannot refuse its assistance. The rules of law which the defendant invokes for her protection are not applicable to the case. The Superior Court is advised that the complaint is sufficient and that the plea in abate- ment is insufficient. In this opinion all the other judges concurred. 1 BIGAOUETTE v. PAULET. 134 Mass. 123. — 1883. Tort in four counts. The first count was for seduction of the plain- tiff's wife; the second and fourth were for assault upon her; and the third was for a rape: whereby the plaintiff lost her comfort, assist- ance, society and benefit. The judge below ruled that, as there was no evidence to support the count charging the defendant with seducing the plaintiff's wife, and as the evidence applicable to the counts for assault and rape proved that no loss of service was caused to the plaintiff, the action could not be maintained; and directed a verdict for the defendant. The plaintiff alleged exceptions. W. Allen, J. The plaintiff cannot maintain this action for an injury to the wife only; he must prove that some right of his own in the person or conduct of his wife has been violated. A husband is not the master of his wife, and can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium — the right to the conjugal fellowship of the wife, 1 "Our statute, years ago, gave the wife a right to sue alone, and thus — adopting the chancery doctrine and abrogating that of the common law — broke down the only position upon which it could with the slightest plausibility be asserted that she could not sue one who wrongfully took her husband from her, since upon the ground that she could not sue alone was rested the doctrine denying her a right to sue one who enticed away her husband. It was never asserted by the better considered cases nor by the abler text-writers that she did not herself possess the substantive right upon which the cause of action was founded. The reason that she could not maintain such an action was not that she was not the source of the substantive right, but that there was no remedy available to her for the vindication of the right. When the statue supplied the remedy by breaking down the barrier which stood between her and a recovery, it clothed her with full right to enforce her just and meritorious cause of action." — Elliott, C. J., in Harms v. Xo-wli?i, 129 Ind., 581, 584. [Domestic Relations — 13.] 194 HUSBAND AND WIFE. to her company, cooperation and aid in every conjugal relation. Some acts of a stranger to a wife are of themselves invasions of the husband's right, and necessarily injurious to him; others may or may not injure him, according to their consequences, and in such cases the injurious consequences must be proved, and it must be shown that the husband actually lost the company and assistance of the wife. This is illustrated in the statement of injuries to a hus- band in 3 Bl. Com. 139, 140, where such injuries are said to be prin- cipally three: "Abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her." The first two are of themselves wrongs to the husband, and his remedy is by action of trespass vi et armis. In regard to the others, the author's words are, " If it be a common assault, battery or imprisonment, the law gives the usual remedy to recover dam- ages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly; but if the beating or other maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of the wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill-usage, per quod consortium amisit; in which he shall recover a satisfaction in dam- ages." He states, as one of the circumstances affecting the damages in an action for adultery, "the seduction or otherwise of the wife, founded on her previous behavior and character." It is usual in actions for criminal conversation to allege the seduc- tion of the wife, and the consequent alienation of her affections, and loss of her company and assistance, and sometimes of her services ; but these are matters of aggravation, except so far as they are the state- ment of a legal inference from the fact itself, and actual proof of them is not necessary to the husband's right of action. The loss of the consortium is presumed, although the wife may have herself been the seducer, or may not have been living with the husband. A hus- band who is living apart from his wife, if he has not renounced his marital rights, can maintain the action, and it is not necessary for him to prove alienation of the wife's affection, or actual loss of her society and assistance. See Chambers v. Caulfield, 6 East, 244; Wilton v. Webster, 7 C. & P. 198; Yundt v. Hartrunft, 41 111. 9. The essential injury to the husband consists in the defilement of the marriage bed, — in the invasion of his exclusive right to marital intercourse with his wife, and to beget his own children. This presumes the loss of the consortium with his wife, of comfort in her society in that respect in which his right is peculiar and exclusive. Although actions of this nature have generally been brought where TORTS TO THE HUSBAND IN MARITAL RELATION. 195 the alienation of the wife's affections, and actual deprivation of her society and assistance, have been the prominent injury to the hus- band, yet it is plain that the seduction of the wife, inducing her to violate her conjugal duties, and the injuries arising from that, are not the foundation of the action. The original and approved form of action is trespass vi ct afmis, and, though this form was adopted when the act was with the consent of the wife, it was for the reason, as given by Chief Justice Holt, that " the law indulges the husband with an action of assault and battery for the injury done to him, though it be with the consent of his wife, because the law will not allow her a consent in such case to the prejudice of her husband, because of the interest he has in her." Rigaut v. Gallisard, 7 Mod. 78; 2 Ld. Raym. 809; Holt, 50. See, also, Bac. Ab. Trespass, C. 1; and Marriage, F. 2 ; 2 Chit. PI. 13th Am. ed. 855. Reeves' Dom. Rel. 63. The fact that trespass, and not case, was the form of action, even when the wrong was accomplished by the seduction of the wife, for the reason that the wife was deemed incapable of consent, and "force and violence were supposed in law to accompany this atrocious injury," indicates that the cause of action arose from acts com- mitted upon the person of the wife, and not from influences exerted upon her mind, — that the corrupting of the body, rather than the mind of the wife, was the original and essential wrong to the husband. We think that this action may be maintained upon the evidence offered, not for the actual loss of comfort, assistance, society and benefit, alleged in the second and fourth counts as consequences of the assaults set forth in them, but for the loss of the consortium with the wife which is implied from criminal conversation with her, whether with or against her will. Exceptions sustained. KROESSIN v. KELLER. 60 Minn. 372. — 1895. Collins, J. This is an action brought by a married woman against one of her own sex to recover damages, following, in a gen- eral way, the common-law form of declarations in crim. con. A general demurrer to the complaint was overruled in the court below, and by this appeal we are required to determine whether such an action can be maintained; the right to recover being based solely on alleged adulterous acts between plaintiff's husband and the defend- ant. It is to be noticed here that it is not alleged that the defend- ant was the seducer of the husband, or that the plaintiff has been I96 HUSBAND AND WIFE. deprived of his support; nor is it an action for enticing the husband away, or for inducing him to abandon or desert his wife. We are quite safe in saying that at common law no such action could have been maintained. The injured husband alone brought crim. con., and he could sustain the action by simply showing adulterous inter- course. The grounds on which the right to recover was based are well stated in Cooley on Torts, 224, and the principal elements were the disgrace which attached to the plaintiff as the husband of the unfaithful wife, — and no such disgrace has ever rested upon the wife, if there was one, of the guilty defendant, — and, of more importance, the danger that a wife's infidelity might not only impose on her hus- band the support of children not his own, but, still worse, cast discredit upon the legitimacy of those really begotten by him. Be- cause of these elements, the man was always conclusively presumed to be the guilty party. In the eye of the law the female could not even give her consent to the adulterous acts, and, as a result, it was no defence in this form of action that the defendant had been enticed into criminal conversation through the acts and practices of the woman. From this statement as to the grounds or elements constituting this action, it will be seen that the principal ones can- not possibly exist or be involved in a similar action brought by a wife. And what has been said about the unavailability of the defence that the defendant himself was the victim, and not the seducer, is suggestive of what the courts might have to hold to be the rule of pleading, and what they might have to inquire into upon the trial of an action of this kind. Would it be held, following the old rule we have mentioned, and for which the reason seems well founded, that it was no defence for the female sued to allege and prove that she was the party seduced, and that the greater wrong and injury had been inflicted upon her, not upon the plaintiff wife? or would the contrary rule prevail? But we need not consider the subject further, for a moment's reflection will suggest the remarkable results flowing from the adoption of either rule. We have been cited to quite a number of cases determined in the courts of last resort in this country, in which it has been held, with- out much stress being laid on statutes concerning the rights of mar- ried women, that an action may be maintained by a wife against one who wrongfully induces and procures her husband to abandon and send her awav. Westlake v. Westlake, 34 Ohio St. 621, the court being divided in opinion, is a leading case on this view of the sub- ject. A later one, announcing the same doctrine, but made to rest much more on the married woman's acts in the state of Michigan, and similar to our own, is Warren v. Warren, 89 Mich. 123, 50 N. W. TORTS TO THE HUSBAND IN MARITAL RELATION. I97 842. The plaintiff's counsel has been industrious in collecting this class of cases in his brief, and to them we add Price v. Price (Iowa), 60 N. W. 202. But even on this proposition, and despite broad statutory enactments affecting the rights of married women, the courts are not entirely agreed, for in Maine and Wisconsin it has been held that such an action cannot be maintained. Doc v. Roc, 82 Me. 503, 20 Atl. 83; Duffies x. Duffies, 76 Wis. 374, 45 X. W. 522. But we need not decide as between these cases, for the exact question raised by the demurrer here was not the one under consideration in any we have cited. They were brought for enticing away the hus- band; causing him to withdraw his support from the wife; to aban- don or desert her, — an entirely distinct and separate cause of action from that set out in the plaintiff's complaint. At common law this form of action was wholly different in pleadings and proof, as well as parties, from crim. con. It proceeded, and still proceeds, upon different grounds, and we do not regard cases of that nature as authority in this. AVe are not unmindful of the fact that plaintiff's counsel has presented two cases Seaverw. Adams (N. H.), 19 Atl. 776, and ffaynes v. Nowlin, 129 Ind. 581, 29 X. E. 389 — in which it is held that an action by a wife against another woman, based on a complaint very much like this, will lie. But in these cases the authorities before referred to are cited and relied on as directly in point. The courts rendering these decisions do not seem to have considered that there is, and inevitably must be, a marked distinc- tion between an action charging a defendant with having induced and enticed a husband to withdraw his support from his wife and to abandon and desert her, and one similar to crim. con. We think the difference noticeable and material, although we do not wish to be understood as holding that the one first mentioned will lie. That question is not before us, and we simply express our conviction that a wife cannot maintain an action in the nature of crim. con. Such actions would " seem to be better calculated to inflict pain upon inno- cent members of the families of the parties than to secure redress to the persons injured." The power to bring such actions would fur- nish wives "with the means of inflicting untold misery upon others, and little hope of redress for themselves." We find nothing in our statutes in respect to the rights of married women which indicates that the power to proceed in this form of action was intended to be conferred. Attention has been called to G. S. 1894, sec. 5530 (Laws 1887, c. 207, § 1). We have heretofore had occasion to comment upon that act, and have not changed our views as then expressed. Althen v. Tarbox, 48 Minn. 18, 50 N. W. 1018. Order reversed. 198 HUSBAND AND WIFE. Crimes by the Wife. THE STATE v. MA EOO. no Mo. 8. — 1891. Defendant was indicted under the name of Annie Baker. Under this name she prayed a change of venue, and, upon it being granted, she signed bond for appearance in Franklin Circuit Court. In the Franklin court she alleged her true name was Annie Ma Foo, and the proceedings were afterwards conducted accordingly. She was indicted at the January term, 1891, of St. Louis Criminal Court, for mayhem under section 3488. The indictment was in three counts, the first two for mayhem differing only in the corrosive fluid used, and the third charged a felonious assault. At the close of the testimony the state entered a nolle prosequi as to the third count, and appellant was convicted upon the second, her pun- ishment being assessed at five years' imprisonment in the peni- tentiary. After unsuccessful motions for new trial, and in arrest, she was duly sentenced in accordance with the verdict, and from this judg- ment she appealed. Gantt, P. J. * * * But the defendant earnestly contends that the court erred in not qualifying the seventh instruction by adding thereto these words: "There was no evidence that the defendant's husband disapproved of the acts of defendant, and, unless that fact is established, the jury should acquit the defend- ant." And in refusing instruction, numbered 5, prayed in her behalf to the effect that if her husband was present the jury must acquit her. The court gave the following declaration: "7. The court instructs the jury that the evidence in this case is sufficient to show that the defendant, at the time of the alleged commission of the crime, was a married woman, and the wife of Ma Foo. Now, even though you may believe, from the evidence, that the defendant committed the crime as charged in the indictment, yet, if you further believe that she committed the crime in the presence of her husband, Ma Foo, and that he was present at the time when she threw the fluid, then the law, in the absence of other and further culpatory and explana- tory evidence against the defendant herself, presumes that she acted under the immediate coercion of her husband, and, in such case, you will find the defendant not guilty. This presumption of law, however, that a wife acting in the presence of her husband is acting CRIMES BY THE WIFE. I99 under his coercion, and that she is, therefore, not guilty of a crime committed in his presence, is prima facie only, and may be rebut- ted by other proper evidence in the case. And if, in this case, you believe from all the testimony before you that the defendant was the sole acting party, and committed the crime as charged without any incitement on the part of her husband, and without his consent, or that the defendant was the sole instigator of the crime, and com- mitted the same as charged in the indictment, then you will find the defendant guilty, even though you may believe that her husband was present when she committed the act." A married woman's responsibility for crime, committed in the presence of her husband, is variously stated by the text-writers. Blackstone, in his Commentaries, book 1, page 444, says: " And in some felonies, and in some inferior offences committed by her through constraint of her husband, the law excuses her; but this extends not to treason or murder." And in his fourth book he says: " And she will be guilty in the same manner of all those crimes which, like murder, are mala in se, and prohibited by the law of nature." See, also, Russell on Crimes [9th ed.], p. 34. From a close examination and comparison of the cases and the text-writers, the general rule admitted by all seems to be, that if a wife commit any felony, with the exception of murder and treason, and perhaps some other heinous felonies, in the presence of her hus- band, it is presumed, in the absence of evidence to the contrary, that she did it under constraint by him, and is, therefore, excused. 1 Bennett's Leading Criminal Cases, 81; Commonwealth v. Neal, 10 Mass. 152; 1 Bishop's Criminal Law, 452; State v. Williams, 65 N. C. 398. But the authorities are equally agreed that this presumption is only prima facie, and rebuttable. So it is said in Russell on Crimes, pages 32, 33, " But this is only a presumption of law, so that if, upon the evidence, it clearly appear that the wife was not drawn to the offence by her husband, but that she was the principle inciter of it, she is guilty." " And if she commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of murder, treason or robbery in company with, or by coercion of, her husband, she is punishable as if she were sole." And this is the doctrine of all the states in the United States. 1 Wharton on Criminal Law, sec. 79; Seller v. People, 77 X. Y. 411; Tabler v. State, 34 Ohio St. 127; UhVs case, 6 Gratt. 706; State v. Williams, 65 N. C. 398; Miller v. State, 25 Wis. 384. In Arkansas, by force of a statute, the presence of the husband merely is no defence to the wife, unless it " appear from the circum- 200 HUSBAND AND WIFE. stances in the case that violence, threats, commands or coercion were used." Freel v. State, 21 Ark. 212. It will be observed that learned counsel for defendant desire us to ingraft an additional modification on this rule of evidence, and re- quire the state to go further, and prove that the husband not only was not the inciter or responsible criminal agent in the commission of the crime, but that he actually disapproved it, and, in the absence of evidence of his disapproval, the wife must be acquitted. This is not the law. There is little in the present organization of society upon which the prima facie presumption itself can stand, and certainly nothing calling for any extension of the presumption. The statutory rule in Arkansas, supra, is more in accord with the spirit of the age in which we live. In New York, by the Penal Code of 1881, sees. 17 and 24, the presumption is entirely abolished. In this case, if the wife is guilty at all, she, alone, committed the criminal act, which forever deprived the boy of his eyesight. By her own evidence she exonerates her husband of all complicity in the crime. There is not a semblance of constraint. Her responsi- bility was fairly submitted to the jury. The instruction gave her the full benefit of the presumption, and the jury must have found that she was neither coerced nor constrained by act, deed or word of her husband to do what she did, but that she acted from her own free will. Had the act resulted in death, under the common-law authorities she would not have been entitled to the benefit of the presumption of constraint. What difference there is in the principle between the culpability of one who, on purpose and of malice aforethought, destroys the sight of a little child, and one who kills, we leave to others to state. We confess we are unable to formulate any. The defendant has been fairly tried, and the jury have convicted her. This was their peculiar province. We can but regret for the sake of humanity that she could not have been shown innocent of the charge. At this distance, it is hard to conceive of such a crime by a woman, and that woman a mother, with so little provocation or motive. The remarks of Mr. Harvey did not transcend the bounds of legitimate argument. He expressly subordinated his own views of the law to those expressed by the court in its instructions. Finding no error in the record, the judgment is affirmed. All concur.' 1 See Commonwealth v. Dairy, 148 Mass. II, as to violation of the excise law, by the wife, " in the presence of" the husband. CRIMES AS BETWEEN HUSBAND AND WIFE. 201 Crimes as Between Htisband and Wife. THE STATE v. BANKS. 48 Ind. 197. — 1874. Buskirk, C. J. The appellee was indicted in the court below for grand larceny. The indictment charged that the defendant, on the 10th day of October, 1871, unlawfully and feloniously did steal, take, and drive away two horses, one mare, one colt, one wagon, one set of harness, and one grindstone, the personal goods of John Hen- sicker. The issue formed upon the plea of not guilty was submitted to a jury for trial, which resulted in a verdict of not guilty. The court instructed the jury as follows: " It appearing, from all the evidence in the case, that the goods were taken by the defend- ant with the consent of the owner's wife, under an agreement with her that he was to dispose of the same and account for the proceeds to her, and there being no evidence tending to show that there was any adulterous intercourse, actual or contemplated, between the defendant and said wife, you will return a verdict of not guilty. To the giving of this instruction, the State, by her prosecuting attor- ney, excepted, and now prosecutes this appeal, to obtain the opinion of this court as to whether the instruction was correct. It is insisted by the counsel for the State that the instruction was erroneous, upon two grounds: 1. That it misdirected the jury as to the law applicable to the case. 2. That, conceding the instruction properly expressed the law, the court erred in giving it, because it usurped the functions of the jury. In Hawk, P. C, lib. 1, chap. 33, sec. 32, the law is stated thus: " It is certain that a feme covert may be guilty thereof by stealing the goods of a stranger, but not by stealing her husband's, because a husband and wife are considered but as one person in law; and the husband, by endowing his wife at the marriage with all his worldly goods, gives her a kind of interest in them; for which cause even a stranger cannot commit larceny in taking the goods of the husband by the delivery of his wife, as he may by taking away the wife by force and against her will together with the goods of the husband." In Reg iua v. Feather stone ', Dearsly, 369; s. c. 6 Cox, C. C. 376, and 2 Ben. & H. Leading Cases, 362, Lord Campbell said: ' The gen- eral rule of law is, that a wife cannot be found guilty of larceny for stealing the goods of her husband, and that is upon the principle 202 HUSBAND AND WIFE. that the husband and wife are, in the eye of the law, one person; but this rule is properly and reasonably qualified when she becomes an adulteress. She thereby determines her quality of wife, and her property in her husband's goods ceases." We have made a careful examination of the authorities, and they very clearly establish the following propositions: i. The wife cannot be guilty of stealing the goods of her husband, she residing with him and having the possession of the goods by virtue of the marriage relation. 2. When adultery is neither committed nor intended, a person is not guilty of larceny in aiding a wife in taking away her husband's goods. 3. Where adultery has been committed or intended, the adulterer may be convicted of receiving the goods of the husband from the wife, or in aiding the wife in carrying away the goods of the hus- band. 4. Where an adulterer takes goods jointly with the wife, he may be guilty of larceny. 5. Where the wife alone takes property of the husband to her adul- terer's lodgings, he cannot be convicted on mere evidence that the property is in his lodgings. 6. An adulterer is not guilty of larceny if he merely assist the adulteress in carrying away her necessary wearing apparel. It is not necessary for us to lay down as law that, supposing a stranger stole the goods of the husband, and the wife was privy to it and consenting, such privity and consent would, if there was ani- mus furandi in the stranger, exonerate him from what would other- wise be larceny. Nor do we express any opinion as to whether a wife, who has become an adulteress, and carries away the goods of her husband or assists her paramour in carrying away the goods of the husband, may not be convicted of larceny. See 2 Bishop, Crim. Law, sees. 873, 874; Whart. Crim. Law, sees. 1803 to 1806; and 2 Ben.